The Breathalyzer is a pretty common way police can find out if a motorist has had too much to drink, but a Tucson City Court judge has tossed out alcohol breath tests in 49 of his cases, and there could be more.

Defense attorneys just want to make sure the breathalyzer used by Tucson Police properly measures alcohol content, but the company that makes the device won’t release information on how it works, and that’s causing problems for at least one Tucson judge.

The device is called the Intoxilyzer 8000. “The machine basically is supposed to test the blood alcohol in a subject,” says Criminal Defense Attorney Alfred McDonald. Breathalyzer tests are common sights at DUI checkpoints, but attorneys who deal with DUI cases still aren’t convinced the breathalyzer used by TPD does what it’s supposed to.

McDonald says, “Obviously if it doesn’t, that’s something they’d be interested in. And if it does, we’d want to know how it works and if it’s working properly so that we can go back and check the software to make sure it’s accurate.”

The company that makes the Intoxilyzer 8000 is C.M.I., but the problem is that C.M.I. doesn’t want to share it’s software program with defense attorneys like McDonald. “C.M.I.’s position is that this is proprietary, meaning we’ve created this and we don’t want our competitors to go out and start making this type of machine using our software,” McDonald says.

Now a Tucson City Court judge has ruled that if C.M.I. won’t share information, then alcohol breath tests are inadmissible, a decision that Kelly Larkin of Mothers Against Drunk Driving doesn’t agree with. “It’s unfortunate that a judge is letting a defense attorney use these tactics,” she says.

But Larkin says at least the breathalyzer isn’t the only determining factor in a DUI case. “Officers don’t just pull people over and give them a breathalyzer, they are looking at physical signs as well as mental signs of intoxication,” she says.

As for what happens next with the Intoxilyzer 8000 and the cases affected by it, that’s up to the courts to decide. McDonald says, “At this point there’s a lot of litigation that will trickle down and eventually you’ll get one ruling that will apply.” He says the appeals process could take anywhere from several months to a year.

Meantime, the Tucson Police Department says they’ll continue using the Intoxylizer 8000 until they see the results of the appeals process.

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