Judge Orders Release of Breath Analyzer Source Code

Pima County Superior Court Judge Deborah Bernini ruled Friday that defense attorneys should be provided access to the source code and software that is used to power the Intoxilyzer 8000 breath testing equipment currently used by local law enforcement in suspected DUI arrests.

This ruling was made after months of debate between Arizona defense attorneys, who claim that they need the source code to determine whether breath tests administered by local police officers are accurate and reliable measures of an individual's blood alcohol content (BAC), and prosecutors who argue that the source code is a trade secret which should not be disclosed.

Defense attorneys have also argued that refusing to provide the source code for the Intoxilyzer 8000 infringes upon one's constitutional right to cross examine and confront one's accuser. In cases that rely on readings obtained from the breathalyzer, the accuracy of the machine's results cannot fully be challenged without knowing exactly how the measurement is taken. Possession of the source code would help to explain potential errors in the breathalyzer readings.

During the explanation of her ruling, Judge Bernini argued that the code could not be considered a trademark secret because the Intoxilyzer 8000 is not patented and neither is the copyright on the accompanying source code. Judge Bernini ordered that the manufacturer of the Intoxilyzer 8000, a company named CMI, immediately turn over the source code to attorney James Nesci, who has been leading the fight to obtain ownership of the code. Defense attorneys representing approximately twenty individuals arrested on felony DUI charges agreed to consolidate their cases into one case to be decided upon by Bernini. Nesci has taken control of the twenty three cases, and intends to ask Judge Bernini to dismiss the charges against all of the individuals if CMI refuses to release the source code.

Law enforcement officers across Arizona switched from the Intoxilyzer 5000 to the Intoxilyzer 8000 last year, based largely in part on the newer machine's smaller size and the ability for it to be powered by a squad car's cigarette lighter. However, unlike the Intoxilyzer 5000, the Intoxilyzer 8000 isn't patented, so defense attorneys cannot obtain the diagrams and source codes needed to figure out how the machine works. Also, CMI will only sell the Intoxilyzer 8000 to law enforcement agencies, so there is no possible way for individuals not affiliated with law enforcement to obtain information on the new machine. This policy differs from most other breathalyzer companies who readily provide their source codes to anyone who requests them and do not limit who they sell their breathalyzer equipment to.

In addition to Arizona, CMI has been instructed by courts in six other states to turn over the source code for the new Intoxilyzer 8000. Currently, CMI has amassed over $1.2 million in a civil contempt order for not disclosing the source code upon request.

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