A software problem inside a breathalyzer machine used by Tucson-area law enforcement could lead to thousands of driving under the influence cases being tossed.

A dozen years ago, about 5,000 cases within a few months were dismissed after prosecutors agreed the breath-test device, the RBT IV, manufactured by Intoximeters Inc., based in St. Louis, was faulty. Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable.

The current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency. Tucson police made 5,963 DUI arrests in 2007-08, though not all of those resulted from using the Intoxilyzer. Tucson police replaced the RBT IV with an older version of the 8000, CMI's Intoxilyzer 5000, which had been shelved. Tucson police started using the 8000 model Dec. 1, 2006. Most Arizona law-enforcement agencies use the Intoxilyzer 8000.

Neither the state Department of Public Safety nor the Governor's Office of Highway Safety claimed to know how many agencies use the device. Agency spokesmen referred a Tucson Citizen reporter to the other agency. According to CMI Inc., the Owensboro, Ky., maker of the Intoxilyzer 8000, documents filed by prosecutors, eight states, three police departments and one other governmental agency use the Intoxilyzer 8000. It is approved for use in six other states and three other governmental agencies.

Pima County Superior Court Judge Deborah Bernini gave CMI Inc. until Monday to turn over the software source code in an electronic form. So far, CMI has declined to divulge the code, despite court orders across the country.

Defense attorneys say it will show that the device is error-prone. Dozens of DUI cases have been thrown out in local courts because of CMI's refusal to hand over the source code. Several city court judges and county justices of the peace have tossed out the breath-test evidence, which in turn led to prosecutors dismissing the charges. By refusing to obey court orders, the company has racked up more than $1 million in fines issued by Florida courts, records show.

CMI President Toby Hall didn't return phone calls for comment.

Deputy Pima County Attorney Robin Schwartz told Bernini she didn't think the state could force CMI to reveal the code. Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn't hold him and CMI in contempt for refusing to comply with her orders. CMI has said it will give up the code, on paper, if the recipient signs a nondisclosure agreement. Defense attorneys have refused to do so. "The software has been tested by (the Arizona Department of Public Safety) and the federal government a bazillion times, all kinds of tests, and it's been found to be fine," Chief Criminal Deputy Pima County Attorney David Berkman said.

The Tucson Police Department declined to comment because the Intoxilyzer 8000 case is being litigated.

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