San Diego Police Department uses the Intoxilyzer 8000 to test San Diego DUI suspects.
Fines have climbed to more than $500,000 against the company that makes Florida’s and California’s breath-test machines, part of a legal fight that is stalling more than 100 local DUI / drunk driving cases.
Kentucky-based CMI Inc. faces the fines and the possibility of losing future sales as DUI defense attorneys demand to see computer software that runs the Intoxilyzer 8000.
If DUI lawyers get the source code, they could have their own computer experts analyze whether the machines function correctly. It would give them a chance to question blood alcohol readings that are often the most persuasive piece of evidence in a DUI case.
Minnesota officials filed a federal lawsuit against CMI to divulge the code, which the company says is a protected trade secret. DUI Lawyers in Ohio say similar machines there would bring a glut of challenges.
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CMI told a panel of three 12th Circuit Court judges Friday that it should not be fined for contempt because Sarasota County courts do not have jurisdiction over the company.
It was the first time CMI has showed up in court here to argue against a Sarasota County judge’s order to turn over the source code or pay stiff fines. The fines hit half a million dollars this month.
“It wasn’t just the money, it was a sincere desire by CMI to end this,” CMI attorney Jarrod Malone of Sarasota said after the hearing.
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CMI originally took the issue to the Daviess County District Court in Kentucky. A judge there quashed the subpoena for the source code.
Then a Sarasota County judge said Daviess County courts had no jurisdiction to do that.
“Until we had the coercive fine, they were not here,” said Venice DUI defense attorney Robert Harrison, who represents 63 DUI defendants challenging the accuracy of the Intoxilyzer.
DUI Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that DUI defendants should know everything about a DUI machine that could send them to prison.
CMI says the source code is a trade secret that can be exploited by competitors. Divulging it would do nothing to prove the accuracy of the DUI machines, CMI says.
In October, the DUI company said it would allow “controlled viewing” of the source code with a protection order and nondisclosure agreements.
Malone said CMI has been appearing in Sarasota courts for the last four or five months trying to resolve issues around protective orders before it will turn over the code.
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Like other DUI breath-test machines, the Intoxilyzer 8000 uses a breath sample to measure a person’s blood-alcohol content.
A driver is considered intoxicated at 0.08 percent.
An Intoxilyzer 8000 glitch was discovered a month after it was implemented early last year, when state officials realized the DUI machine failed in certain situations.
The state then upgraded the software in the approximately 400 DUI machines used across the state.
The panel did not say when it might order a ruling on CMI’s appeal of the fine, but court administrators are preparing for how to handle the backlog of DUI cases after the source code issue is settled.
San Diego DUI attorneys are watching this issue closely since this is the same machine SDPD uses in San Diego DUI / Drunk Driving Cases.