5,000 AZ DUI Cases Could Be Tossed

Lawyers report that 5,000 D.U.I cases in Arizona could be dismissed due to a fight over the source code for the Intoxilyzer 8000, in use since Dec. 2006 and alleged to be error-prone. The Judge (as have others across the country) ordered CMI Inc. of Owensboro, Ky, the company that makes the device, to turn over the source code and it has refused, even though it has already accumulated fines of more than $1 million, just in Florida.

(The device has been approved in 6 other states. Colorado uses the Intoxilyzer 5000EN, so I doubt it will happen here.)

It's not the first time this has happened in Arizona.

A dozen years ago, about 5,000 cases were dismissed within a few months after prosecutors agreed the breath-test device in use then, the RBT IV, manufactured by Intoximeters Inc., was faulty.

The number of Tucson DUI arrests in 2007-08: 5,963, although not all involved the Intoxilyzer 8000.

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    the expert is Tom Workman (none / 0) (#1)
    by befuddledvoter on Mon Nov 10, 2008 at 10:20:15 AM EST
    He has also worked as a defense attorney in Mass.  He did appointed counsel cases.  Had a computer background before attending law school. He was president of MACAA, Mass. Assoc. of Court Appointed Attorneys, an upstart organization which is credited with achieving an increase in rate of comp after no icrease in the prior 20 years. (I am a BD member so have worked along Tom on these issues.).  I bet Tom is earning more now as an expert.    

    We have the same (none / 0) (#2)
    by eric on Mon Nov 10, 2008 at 10:41:37 AM EST
    thing going on here in Minnesota.  At least one judge has ordered them to turn over the source code, but they won't do it.

    In one county, they have started using urine analysis instead.  In one case, the cop ordered the driver to take the urine test outside, without privacy or proper access to a lawyer.  (We have a right to a lawyer before alcohol test here).  Anyway, that case was dismissed :)

    Aside from potential faulty code.... (none / 0) (#3)
    by kdog on Mon Nov 10, 2008 at 10:54:30 AM EST
    I often wonder how often law enforcement calibrates the machines...especially when you're dealing in 1/100ths of 1 percent.

    When I asked an officer of the law this question while serving on a grand jury, the guy looked at me like I had 3 heads.  

    Calibration (none / 0) (#5)
    by Abdul Abulbul Amir on Tue Nov 11, 2008 at 12:44:28 PM EST

    Calibration and "measurement uncertainty" (Google it) are real issues that rarely get addressed.  As an example take a look at the temperature display in front of most any local bank.  I have seen a 6 degree spread in less than a block.

    Electronic measurement devices are subject to error.  They all are.  The goal is to reduce the error to acceptable levels.  Without periodic calibration it is not possible to know if a device has drifted off.  The calibration needs to include a range of known input gases, and taken under a range of temperatures.  

    That said, the source code gambit is perhaps merely clever lawyering.  If the device can measure what it claims to measure, consistantly and within acceptable error, the source code is irrelevant.

    If the device is four years old and been stored in the trunk of a police cruiser and experienced -30F to 120F temperatures, bumpy rides, and smoker's exhale without being cleaned the number it produces is questionable at best.


    In Minnesota (none / 0) (#4)
    by eric on Mon Nov 10, 2008 at 12:05:54 PM EST
    a Federal Judge has just allowed DUI defendants to intervene in the lawsuit against CMI.


    Hopefully that mucks things up nicely, and we can have more dismissals.