Local News

Lawyer seeking machine's code in Hieb DUI case
BY JEFFREY GAUTREAUX, SUN STAFF WRITER
Sep 9, 2006

CONTINUING COVERAGE

One of the most significant ongoing debates in drunken driving prosecution and defense may play a big role in the outcome of a Yuma city council member's DUI case.

The lawyer for councilman Ross Hieb has filed a motion requesting the programming code of the Intoxilyzer 8000 — the machine used when Hieb took a breath test April 23. Attorney John Jongeward filed the 11-page motion in San Luis Municipal Court.

"Should you be able to know everything about a machine if it's the evidence that is going to convict your client?" Jongeward said. "The answer is yes."

Jongeward says he can't trust those results because he doesn't know if the machine was correctly calibrated. He said if a fingerprint on a doorknob was the piece of evidence that was going to convict his client in a murder case, he would want to have full disclosure of the science and method used in collecting the print. And just because this is a DUI case doesn't make having that information less important.

But Steve Butler, forensic alcohol supervisor for the Arizona Department of Public Safety Crime Lab, says having the code doesn't make understanding the intoxilyzer more clear. He said the code is just lines of information in programming language that tells little.

"You have to put the machine through its paces," he said.

Butler's office provides scientific support to law enforcement agencies across the state that give alcohol breath tests. In some cases, crime lab officials have provided expert testimony. He said they are willing to do those same things in the Hieb case.

Hieb declined to comment for this story. He was cited for driving under the influence of alcohol and DUI with a blood alcohol level above .08 as well as two other violations after a crash. Both DUI charges are class 1 misdemeanors. A Yuma Police report said Hieb registered blood alcohol levels of .134 and .136 on the Intoxilyzer 8000.

The motion Jongeward filed says "the State uses the codes in its machines even though it takes no responsibility for their content. The crime labs do not have them, the State does not have them. The Defendant is entitled to know the evidence in the machine being used against him since the machine reading is, according to the Arizona Supreme Court, ‘dispositive.’ "

Butler confirmed that the state does not have the code, but he said it isn't necessary to offer accurate tests. CMI, a Kentucky company, has held the code as a trade secret. A message seeking comment from CMI was not returned.

In November 2005, a panel of judges in Sarasota County, Fla., ordered that the code should be disclosed, but the company refused. The judges said people's freedom should not be "jeopardized by the results of a mystical machine that is immune from discovery."

That decision is being appealed, and other judges have ruled that states cannot hand over what they don't have.

A Maricopa County Superior Court Judge ruled in July that the source code did not need to be released. And on May 11, a bill became law that says the inability to obtain trade secrets for an approved breath testing device — of which the intoxilyzer is in Arizona — does not affect the admissibility of its results. However, Hieb's test had already come before that law was effective.

Butler said the intoxilyzer is not a "mystical machine" to the crime lab. "We certainly understand what the instrument does, and we can test to ensure it's working ... But reading the source code wouldn't make that clear," he said.

In past cases in which Jongeward has made the disclosure motion, he said some have been dismissed and some have had convictions later set aside. The Sun attempted to view some of the cases where Jongeward had used the motion, but in two cases the convictions had been set aside and are no longer available for review by the public.

Jongeward said there was apprehension on Hieb's part about using the motion. "Ross is such an honest, forthright, stand-up person, that his response was to plead guilty and get it done with," he said.

The attorney said Hieb gave him the leeway to take a look at the case and try to find if the intoxilyzer had worked correctly. Jongeward said the intoxilyzer itself is what decides whether it is working properly and the code could have a hand in whether it thinks it is in or out of tolerance.

Butler said the machine polices itself because it always tests a dry gas before each test. If that test comes back out of tolerance, the machine cancels itself. Butler said that dry gas comes from the National Institute of Standards and Technology — the same group that keeps the atomic clock.

The two sides in Hieb's case met for a pretrial conference Aug. 14 and agreed the hearing should be reset for the end of November. Court documents said the new date was requested "due to the motion for disclosure and that the information concerning the motion will not be available until mid-October 2006."

The case is being heard before Judge Rosendo Morales.

Jeffrey Gautreaux can be reached at jgautreaux@yumasun.com or 539-6858.

© Copyright, YumaSun.com