The Court of Appeals overturned a Superior Court ruling that gave Arizona DUI lawyers access to breath-testing equipment software. The panel said it found no evidence to support the claim of the lower court judge that prosecutors have ‘better access’ to the software code for the Intoxilyzer 8000 than defense attorneys.
The Intoxilyzer 8000 has come under repeated attack from lawyers handling cases of suspected driving under the influence. Defense attorneys across the country say that access to the code would enable them to independently verify accuracy and reliability of the equipment. The legal argument is that defendants have a constitutional right to challenge their accusers. The manufacturer of the Intoxilyzer 8000 has countered that the code is a trade secret. The issue of access to the code, as well as incidents of unauthorized changes to state approved equipment and software, have led to court battles in Minnesota, Florida, Louisiana, Massachusetts and New Jersey. After the equipment failed to meet accuracy testing, it was prohibited from use in Tennessee.
In its ruling, the Arizona Court only clarified that prosecutors do not have an advantage over DUI criminal defense attorneys. The underlying issue of ‘substantial need’ for access to the equipment’s software code remains, and state prosecutors believe it will ultimately end up before the Court of Appeals.
The recent ruling means that the Superior Court judge has three options; suppress the breath test evidence in the 23 cases of driving under the influence in Arizona currently before her; permit the prosecutors to enter the breath test results into evidence; or dismiss the AZ DUI charges. It is almost assured that whatever decision is made it will be appealed.
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