Source Code Litigation May Halt Breath Testing in Arizona

by ptbarone on May 21, 2009

in Breath and Blood Testing, Defending Drinking Drivers, Drunk Driving "In the News", Drunk Driving Attorney's Page

I’ve written about source codeand source code victories before, and I want to keep updating this topic as new information and new cases are developed.  In reading this keep in mind that NPAS (National Patent Analytic Systems) makes Michigan’s breath testing equipment which is called the “DataMaster.” 

Source code is a legitimate if not well understood issue.  To see what the programers have to say about this issue, see Bruce Schneier’s blog.  Bruce is not associated with either “side” in the breath testing source-code debate, but acknowledges that this is an important issue.

The case described below involves a different breath testing machine used in states other than Michigan, for example Arizona.  This case is the result of one of Arizona’s top DUI lawyer Jim Nesci. 

Intoxilizer 8000, State’s Motion to Reconsider (Second)

The State seek reconsideration of this Court’s March 6, 2009 Order suppressing the results of breath tests performed by the Intoxilizer 8000 unless the source code is disclosed to the Defendants. The Motion is predicated upon the recently published Court of Appeals Division Two opinion in State v. Bernini (Daughters-White) ___  Ariz.___,  553 Ariz. Adv. Rep 12 (App. 2009). [1]

In Daughters-White Division Two reversed a Superior Court finding the State had better access to the source code than the Defendants had. The Court also discussed, but declined to overrule, a Superior Court finding, pursuant to Rule 15.1 (g), that the Defendants has a substantial need for the source code.

 The State argues Daughters-White requires reconsideration because this Court based its prior rulings upon Judge Bernini’s now over ruled findings. State’s Motion, p. 4. This is incorrect. Although this Court incorporated the record created by Judge Bernini in Daughters-White it adopted neither her findings of fact or her conclusions or law. This Court made its own factual findings based upon a record that included not only the Daughters-White proceedings but also the hearings conducted by Judge Klotz in Martinezas well as its own evidentiary hearings.

I.                   Access to the Source Code

Division Two reversed Judge Bernini’s finding the State had “better access” to the source code. This finding was based upon the Daughters-White record.[2]  The record in these cases is more extensive than Daughters-White. This Court considered the purchase orders from the City of Tucson for the Intoxilzer 8000. These contained no limitation on TPD’s use for the machines or the software contained within. Pursuant to the Uniform Commercial Code computers and contained software are “goods”. Advent Systems Ltd. v. Unysis, 925 P. 2d 670 (3rd Cir. 1991), See A.R.S. 47-2105. Given the lack of restriction it could be argued the State (City) “owns” the source code. See, Minnesotav. Underdahl, ___NW 2d___ (2009) (State owns the Intoxilizer 5000 source code). It is not necessary, however, to resolve this issue.

The Courts Rule 15.1 (g) authority to order disclosure is not limited to records within the control or possession of the State. It also extends to documents in the possession of third parties. State v. Kevil, 111 Ariz . 240, 243, 527 P. 2d 285 (1974).  

More importantly this Court’s previous decisions ordering suppression of the results of the Intoxilizer 8000 were not predicated upon the States possession of the source code but rather upon the Defendants Sixth Amendment rights to confrontation.[3] This issue was not addressed by the Court of Appeals.

II.                Substantial Need 

 In Daughters-White Division Two stated, “The state also persuasively challenges the respondent judge’s finding the defendant’s have a “substantial need” for the source code to prepare their cases”. 553 Ariz. Adv. at 13. The Court did not elaborate on what it found persuasive and specifically noted it was not reversing the trial courts finding of substantial need. Id. [4]

 The record before this Court concerning substantial need is substantially stronger than that present in Daughters-White or Underdahl. This Court continues to believe the Defendants have established a substantial need for access to the source code and related Arizona software in order to adequately confront the evidence the State seeks to use against them. The States Motion to Reconsider is denied.

[1] The State previously sought reconsideration based upon Division Two’s previously unpublished opinion. The published opinion is virtually identical to the previous version with the addition of an expanded discussion of the substantial need issue.

[2]  The Court of Appeals noted the Daughters-White defendants never argued the State “had better access”. Id., p. 13, n. 3.

[3] The Court readopts by reference the Sixth Amendment analysis contained in its May 15, 2008 decision in State of Arizona v. Bracker, et. Al.

[4] In Underdahlthe Minnesota Supreme Court reviewed a trial courts finding “…that the integrity of the source code is essential to the scientific reliability of the Intoxilizer…” and upheld its order requiring disclosure.

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