Arizona Contemplating Dismissal of Thousands of DUI Cases

Posted On January 07, 2009 by Charles Ramsay

Court's upset over CMI's refusal to disclose the Source Code

According to an article in the Tucson Citizen, courts in Arizona may soon determine that the Intoxilyzer 8000, an updated version of the Minnesota Model Intoxilyzer 5000EN, is unreliable, leading to the dismissal of thousands of cases at once.

James Nesci, a Sustaining Member of the National College for DUI Defense, is the principal architect of the Arizona cases. He has become a national leader in the DUI Defense field, leading seminars around the country, including the 2001 and 2003 Summer Sessions of the National College for DUI Defense and a class on DUI Defense at the University of Arizona, James E. Rogers College of Law.

In 1997, Arizona courts found the RBT IV, a predecessor to CMI's breathalyzer, to be unreliable and dismissed over 3,000 cases in a single day, and over 5,000 cases over the span of a few months. After defense attorneys had challenged the integrity of the RBT IV, prosecutors eventually acknowledged the machine's problems and dropped the charges of over 5,000 people that had wrongfully been accused of driving under the influence.

Now, as courts and defense attorneys across the country have began to bring challenges to the integrity of the mysterious black boxes manufactured by CMI, they may be close to another mass exodus of DWI cases. The story notes how Toby Hall, the president of CMI, admitted that there were problems with earlier versions of software, but refused to notify testing agencies.

Despite these problems, along with those acknowledged in Minnesota, CMI has refused to allow defense attorneys and drivers the opportunity to meaningfully review the software that runs their machines. In Florida, CMI has racked up over $1,000,000 (One Million) in fines for refusing to comply with a court order mandating disclosure of the source code. (For more information on the Florida proceedings, visit the webpage of Attorney Robert Harrison at Judge Deborah Bernini from Arizona ordered CMI to release an electronic copy of the code, but according to defense attorneys, "a process server couldn't get [CMI] to accept the court order." After hearing this, the Court set a hearing ordering CMI's president to appear and "explain why [the Court] shouldn't hold him and CMI in contempt for refusing to comply with [court] orders." When time for that hearing came around, Toby Hall never showed up, and instead blamed the whole dispute on the defense bar's refusal to accept the electronic confidentiality code.

CMI has been willing to allow drivers to review the source code on paper, but only if they first sign a burdensome non-disclosure agreement. This confidentiality burden, along with their refusal to allow review of an electronic copy of the code has essentially rendered meaningful review of the Source Code impossible. John Fusco, President of National Patent Analytical Systems of Mansfield, OH and a former sales representative for CMI, has stated that, in the manner that CMI has been willing to disclose it, the source code is "completely useless in hardback."

Our law office is leading the charge both in Minnesota and in Federal Court to allow Minnesota citizens a meaningful opportunity to review the source code to these mysterious machines and be afforded their constitutional rights to present a meaningful defense and confront their accusers. For more information on this and other developments in the law, including details on the federal case of State of Minnesota v. CMI, Inc., please visit my website at