4/10/2009 11:30:00 AM Appellate ruling lends new twist to DUI prosecutions
By HOWARD FISCHER Capitol Media Services
PHOENIX -- A new appellate court ruling could make it difficult, if not impossible, for prosecutors to convict motorists on charges of driving with blood-alcohol content above the legal limit.
In a case with regional, if not ultimately statewide implications, the judges on Wednesday rejected efforts by the Pima County Attorney's Office to overrule a lower court decision that those charged with driving with a BAC of more than 0.08 have a "substantial need' for the software used in machinery that tests breath samples.
The judges did agree that prosecutors do not have the information themselves. And Judge Philip Espinosa, writing for the court, said the prosecutors have no legal obligation to try to get it from CMI, a Kentucky corporation that manufactures the Intoxilyzer brand equipment used by many police departments.
But the appellate judges left undisturbed a ruling by Pima County Superior Court Judge Deborah Bernini that the only way people charged with breaking the law could defend themselves is to examine the software which determines how the machinery works -- software that does the computations which result in the BAC reading being used in court against them.
So far, efforts by defendants to get the information directly from CMI have gone nowhere after a Kentucky court quashed the subpoena. And now, with the new ruling, the defendants can't force prosecutors to get the information for them, information
Bernini said they are legally entitled to have to make their case.
"It really throws the ball back into the trial court's court,' said Jacob Lines, a deputy Pima County attorney, Line said Bernini now is free to suppress the breath test results. Without that, there is no hard evidence that any of the defendants were driving with a BAC above the legal limit.
Defense attorney Joe St. Louis said suppression is exactly what he and partner James Nesci now will seek.
"We had three days of hearings where she heard from the experts on both side,' St. Louis said of Bernini. "She said, yes, these (BAC) readings don't make any sense.'
And that, said St. Louis, entitles defense attorneys to the software "to know how it comes up with the numbers.'
Lines told Capitol Media Services that Wednesday's ruling, which has implications beyond these specific cases, technically does not make prosecuting drunk driving cases impossible.
He pointed out that motorists generally are charged with two separate offenses. One is having a BAC above that legal limit of 0.08; the other makes it illegal to drive under the influence of alcohol "if the person is impaired to the slightest degree.'
Lines said he can still try to get a conviction on the second charge if Bernini refuses to let him use the breath test readings. But he was not optimistic about his chances.
"Juries are used to that evidence,' he said of the readings. "If you come in without blood and start arguing 'impaired to the slightest degree,' they may be thinking, 'where's the blood?' he said.
Lines said his office has won some cases without blood-alcohol readings. "But we also lost those cases,' he said.
He said it is unlikely his office will ask the state Supreme Court to review Wednesday's ruling.
The fact that Wednesday's decision was officially "published' by the court makes it precedent for Cochise, Gila, Graham, Greenlee, Pima, Pinal, and Santa Cruz counties. That means attorneys for drunk-driving defendants in these counties can cite it when making similar requests to suppress breath test results because they cannot get the software.
While it holds no official precedent in the state's other eight counties, lawyers for defendants in those communities are free to refer to the decision and ask that it be recognized by trial judges.
