                                                              FILED BY CLERK
                            IN THE COURT OF APPEALS             OCT 27 2009
                                STATE OF ARIZONA
                                                                 COURT OF APPEALS
                                  DIVISION TWO                     DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )
                               Petitioner,    )
                                              )
                      v.                      )
                                              )   2 CA-SA 2009-0062
HON. DEBORAH BERNINI, Judge of                )   DEPARTMENT A
the Superior Court of the State of            )
Arizona, in and for the County of Pima,       )   OPINION
                                              )
                             Respondent,      )
                                              )
                     and                      )
                                              )
ERICA LEA DAUGHTERS-WHITE;                    )
SEAN AARON JOHNSON; JOHN                      )
CLIFTON LIVINGSTON; HILDA                     )
ALDAY; JONI MARI LUJAN; JUAN                  )
CARLOS RODRIGUEZ; CRISTAL                     )
MIKESELL; JAMES FREEMAN;                      )
MARTIN LEE HULETT, JR.; JOHNNIE               )
WILLIE TREADWAY; ARLENE                       )
KANDIS TONEY; ROMEO ALONSO                    )
RODRIGUEZ; RICKY JOSEPH                       )
WILLIAMS; BELINDA MARIE                       )
SANCHEZ; JARED SHERER; STEVEN                 )
ANTHONY BONIN; RYAN A.                        )
BRAYFIELD; KASEY LACH; DANIEL                 )
OLIVERI; TERRY CRUMRINE;                      )
DENNIS BARRERAS, JR.; MARTIN                  )
SANDERS; MORAIMA SELIG;                       )
ERNEST ROMERO; JORGE                          )
GONZALEZ; RAQUEL CORONADO;                    )
KELLY SCHRECK; and SEAN                       )
O’SHEA,                                       )
                                              )
                  Real Parties in Interest.   )
                                              )
                           SPECIAL ACTION PROCEEDING

 Pima County Cause Nos. CR-20071798, CR-20072680, CR-20070902, CR-20071499,
     CR-20073079, CR-20073256, CR-20073391, CR-20073480, CR-20073727,
     CR-20073946, CR-20074048, CR-20074156, CR-20074805, CR-20080057,
     CR-20080301, CR-20080687, CR-20080876, CR-20081388, CR-20082259,
     CR-20082120, CR-20082990, CR-20083187, CR-20083394, CR-20083626,
      CR-20083996, CR-20091579, CR-20092032, CR-20092143, CR-20074485
                                (Consolidated)

                   JURISDICTION ACCEPTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                                   Tucson
                                                                     Attorneys for Petitioner

Nesci, St. Louis & West PLLC
 By James Nesci and Joseph St. Louis                                                  Tucson
                                                        Attorneys for Real Parties in Interest


E S P I N O S A, Presiding Judge.


¶1            The State of Arizona has petitioned this court for special action relief from the

respondent judge’s order that it produce software for the Intoxilyzer 8000, the breath-testing

equipment currently used by the Tucson Police Department, to real parties in interest, Erica

Daughters-White and twenty-seven other defendants (Defendants) charged in these

consolidated cases with driving with a blood alcohol concentration of .08 or more. In State

v. Bernini, 220 Ariz. 536, ¶¶ 8, 11, 207 P.3d 789, 791-92 (App. 2009), we vacated the

respondent judge’s order that the state obtain and produce “‘the source code for the

Intoxilyzer 8000 and Intoxilyzer 8000 software versions 8105.44, 8105.45 and 8105.46,’”


                                              2
because we agreed with the state that the record before us did not support her finding that the

state had greater access than Defendants to the software configuration or “source code.”

¶2            In that opinion, we found it unnecessary to reach the state’s alternative

argument that Defendants had failed to establish a “substantial need” for the source code in

preparing their defenses, see Ariz. R. Crim. P. 15.1(g), particularly as we have construed that

requirement in State v. Fields, 196 Ariz. 580, 2 P.3d 670 (App. 1999). See id. ¶ 10. After

we remanded this matter, the respondent found our opinion did not affect her order that the

state disclose electronic versions of the actual software, but only the source codes for the

software, and ordered the software disclosed.

¶3            In this petition for special action, the state seeks relief from the respondent

judge’s order. It maintains our decision vacated the respondent’s order in its entirety and

constitutes law of the case. According to the state, the respondent therefore erroneously

concluded her order to disclose software had “not been set aside, reversed or reconsidered.”

Alternatively, the state argues Defendants failed to establish a substantial need for either the

software or the associated source code. We accept jurisdiction because the state has no

equally plain, speedy, or adequate remedy by appeal, see State v. Campoy, 220 Ariz. 539, ¶ 2,

207 P.3d 792, 795 (App. 2009), and because the issue is one of statewide importance, see

Martin v. Reinstein, 195 Ariz. 293, ¶ 10, 987 P.2d 779, 786-87 (App. 1999).

Whether the Respondent’s Subsequent Order was Precluded

¶4            In State v. Bernini, 220 Ariz. 536, ¶ 11, 207 P.3d 789, 792 (App. 2009)

(Daughters-White I), we vacated the respondent judge’s order of October 27, 2008, “‘that the



                                               3
state obtain the source code for the Intoxilyzer 8000 and Intoxilyzer 8000 software versions

8105.44, 8105.45 and 8105.46.’” In her subsequent order of July 31, 2009, at issue in this

special action, the respondent wrote:

                      The original hearings before this Court addressed
              whether Rule 15.1, Arizona Rules [of] Criminal Procedure,
              required the State to produce a copy of the Intoxylizer 8000
              source code and software. The Court found that the State did
              not possess the source code and had no control over CMI [the
              corporation that manufactures the Intoxilyzer 8000]. However,
              the Court went on to find that, first, the State had better access
              to the source code and remained obligated to produce it under
              the rules and, second, that it did have possession of the software
              and ordered production. The Court of Appeals found no
              evidence to support the trial court’s finding that the State had
              better access to the source code and reversed that ruling, but the
              opinion did not address the trial court’s order that the software
              be disclosed. . . . However, despite this Court’s order on
              September 10, 2008 that the Intoxilyzer software, versions
              8105.44, 8105.45, and 8105.46, be disclosed—an order that has
              not been set aside, reversed or reconsidered—no disclosure has
              been forthcoming. The State is obligated to disclose copies of
              the software immediately, along with whatever may be
              necessary for the defense to operate or view the contents of that
              software.

Accordingly, the respondent ordered:        “The Consolidated Defendants’ Request for

Production is DENIED as to the source code but GRANTED as to the software as previously

ordered by the court.”

¶5            First, we note the inherent ambiguity in the subject of the respondent’s orders

of September 10, 2008 and October 27, 2008. Both referred to “the source code for the

Intoxilyzer 8000 and Intoxilyzer 8000 software versions 8105.44, 8105.45 and 8105.46,”

which could mean the source code for the Intoxilyzer 8000 and for the identified software



                                              4
versions, or, as the respondent now seems to suggest, the source code for the Intoxilyzer

8000 and, separately, the software used with the Intoxilyzer 8000, specifically software

versions 8105.44, 8105.45, and 8105.46.

¶6            But whatever the intended meaning of the respondent’s order of October 27,

2008, we agree with the state that it was vacated by our decision in Daughters-White I and

had no continuing vitality. Contrary to respondent’s recent ruling, the October 27 order was

the only decision presented to this court in Daughters-White I that required disclosure by the

state. Specifically, after review of the respondent’s minute entry orders and relevant

transcripts, we find no evidence in this record that she had ever found the state possessed the

software or had ordered the state to disclose it. In the minute entry of September 10, 2008,

on which the respondent relied, she had ordered CMI to “produce the source code for the

Intoxilyzer 8000 and Intoxilyzer 8000 software versions 8105.44, 8105.45 and 8105.46.”

She did not order the state in that minute entry to disclose Intoxilyzer 8000 software, as she

has recently suggested, but rather expressly “decline[d] to find that the state has a Rule 15.1

obligation to produce the programming language or software utilized by CMI in its

Intoxilyzer 8000 machines.”       Finally, we note the respondent is mistaken that her

September 10, 2008 minute entry has continuing validity. The respondent herself expressly

vacated the minute entry order in January 2009. Accordingly, the state had no disclosure

obligations under the respondent’s previous orders.

¶7            Defendants did not meaningfully respond to the state’s preclusion argument

in their answering brief or at oral argument before this court. It is arguable, however, that



                                              5
the respondent intended to direct the state to produce Intoxilyzer 8000 software without

relying on a previously vacated order. We therefore address the state’s argument that the

respondent abused her discretion in finding Defendants had met their burden of showing

substantial need.

Whether Defendants Established “Substantial Need” for Intoxilyzer 8000 Software
under Rule 15.1(g).

¶8             Although the sufficiency of a showing of substantial need may vary from case

to case, a court’s application of the relevant standard is a legal issue, and questions of law

are appropriately reviewed by special action. See Campoy, 220 Ariz. 539, ¶ 2, 207 P.3d at

795 (accepting special action jurisdiction where “issues raised . . . involve questions of law

relating to the interpretation and application of procedural rules” and are of statewide

importance). And, “[a]lthough a trial court is in the best position to rule on discovery

requests, it ‘abuses its discretion when it misapplies the law or predicates its decision upon

irrational bases.’” Fields, 196 Ariz. 580, ¶ 4, 2 P.3d at 672, quoting Blazek v. Superior

Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App. 1994) (internal citation omitted).

¶9             In Fields, we concluded the respondent judge had abused his discretion in

granting defendants’ requests to physically inspect, observe, and videotape the “personnel,

equipment, and procedures used” by a crime laboratory in conducting blood alcohol testing.

Id. ¶ 1. Specifically, even taking the defendants’ allegations as true, we found they had failed

to establish a “substantial need” for the inspection when they had not alleged “1) that their

respective [blood alcohol] determinations were incorrect or inaccurate; 2) how, or even if,

the alleged lab[oratory] deficiencies affected their test results; or 3) any indication as to what


                                                6
admissible evidence they expect[ed] to find in observing the Crime Lab’s operations.” Id. ¶ 7

(collecting authorities); cf. State v. Conner, 215 Ariz. 553, ¶¶ 18-25, 161 P.3d 596, 603-05

(App. 2007) (no substantial need for medical records to show victim’s psychological

propensity for violence when, among other reasons, majority of any evidence obtained would

be inadmissible). We reach a similar conclusion here.

¶10           Defendants argue they have shown “that the software is to blame for the

anomalies, errors and faults that have plagued the Intoxilyzer 8000.” But, as in Fields, even

if Defendants are correct, none of the anomalies alleged has been shown to impair the

reliability of the tests, and the record establishes that most are “labeling errors” that do not

affect the accuracy of the alcohol-content values reported. Cf. Mack v. Cruikshank, 196 Ariz.

541, ¶ 12, 2 P.3d 100, 104 (App. 1999) (“due process requires that the state ensure that the

tests it demands . . . produce reasonably accurate results”). And none of the Defendants has

alleged his or her individual test results were inaccurate as the result of the software “bugs”

identified.

¶11           For example, Defendants’ expert witnesses testified about two specific

circumstances in which results of tests performed with the Intoxilyzer 8000 were found to

be mislabeled. They found some test results exactly .020 apart that were mislabeled as

having “no .020 agreement,” as well as calibration checks that were incorrectly labeled as

being within tolerance or out of tolerance for allowed variation.            Neither of these

circumstances affected any of the Defendants, and neither affected in any event the accuracy




                                               7
of the test and calibration results which are displayed in numerical form and reviewed by a

trained operator.

¶12            The same holds true for a variety of other alleged “defects” Defendants

delineate, including the Intoxilyzer’s response to radio frequency interference, the existence

of some software patches, an alleged “secret hierarchy of error-reporting known only to the

programmers,” the machine’s failure to shut down automatically after a “diagnostic fail”

message, the printing of incomplete error messages, and the high percentage of “exceptions”

occasions when the machine detects a testing problem—in tests administered by the Tucson

Police Department. Defendants’ experts did not, and indeed did not attempt to, relate these

events to Defendants’ test results.1 Additionally, as it did with the mislabeled test results, the

state explained these perceived flaws and demonstrated they do not affect the reliability of

the machine’s test results, a showing Defendants did not refute.

¶13            The state’s witnesses explained the alleged anomalies, record by record. In

most cases, anomalies were the result of training exercises or quality assurance tests in which

unexpected results were intentionally triggered. None of these records was shown to have

any connection to any of the tests performed on Defendants.2 And, most importantly, none


       1
        None of the defense experts reviewed or addressed any of the individual test results
or police reports pertaining to any of the specific Defendants in these consolidated actions.
       2
         At oral argument, for example, counsel for Defendants distributed copies of an
exhibit showing the Intoxilyzer 8000 had failed to correctly label a calibration that had been
out of tolerance during a subject’s test. But the numerical calibration score was printed and
available for a trained operator’s review, and the subject was not one of the Defendants in
this case. There is no evidence in the record of how the operator responded to the result, the
history of the test subject’s prosecution, or how the test may have been used at trial.

                                                8
was shown to implicate the reliability of the Intoxilyzer 8000. Mark Stoltman, a forensic

toxicologist who testified for Defendants, opined that “whether [the Intoxilyzer 8000 was]

working properly or not is a separate issue from how it works,” and, although he might

“potentially” discover additional software defects by reviewing the source code, the accuracy

of the equipment would be determined by whether it passed quality assurance tests,

regardless of any such discoveries.

¶14              Defendants repeatedly point out that we ordinarily “defer to the trial court with

regard to any findings of fact, explicitly or implicitly made” as long as they are supported by

reasonable evidence. Francis v. Sanders, 222 Ariz. 423, ¶ 10, 215 P.3d 397, 400 (App.

2009).       “‘But when a judge commits an error of law . . . in the process of reaching [a]

discretionary conclusion, [she] may be regarded as having abused [her] discretion.’” Id.,

quoting Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003)

(additional citations omitted) (first two alterations in Sanders). As in Fields, Defendants

failed to establish “how, or even if, the alleged [software] deficiencies affected their test

results.” 196 Ariz. 580, ¶ 7, 2 P.3d at 673. Instead, they seek disclosure “merely in hope that

something will turn up.” 3 Id., quoting Bettlyoun v. State, 562 P.2d 862, 866 (Okla. Crim.



Presumably, counsel for that test subject would have the opportunity to challenge the test
results through a motion in limine, cross-examination of the operator, or even presentation
of expert testimony. The exhibit does not establish that Defendants have a substantial need
for the software for the equipment in order to prepare their own defenses.
         3
        Notably, to the extent Defendants seek to invalidate or suppress the test results, they
are well short of the necessary showing. As our supreme court has observed, defendants are
not entitled to a perfect test but, rather, to a reasonably reliable one. State v. Velasco, 165
Ariz. 480, 486-87, 799 P.2d 821, 827-28 (1990) (no requirement scientific process

                                                 9
App. 1977); see also State v. Cano, 154 Ariz. 447, 449-50, 743 P.2d 956, 958-59 (App.

1987) (trial court properly denied request to examine officer’s personnel file based on

conjecture it might contain evidence of past dishonesty). This is not a sufficient basis for

ordering extraordinary disclosure, see id., and the respondent judge abused her discretion in

doing so.

¶15           For the foregoing reasons, we accept jurisdiction of this special action and

grant relief. The respondent judge’s order requiring the state to disclose the software for the

Intoxilyzer 8000, in any of its versions, is vacated.




                                               PHILIP G. ESPINOSA, Presiding Judge

CONCURRING:




JOSEPH W. HOWARD, Chief Judge




J. WILLIAM BRAMMER, JR., Judge




underlying alcohol testing be “absolutely perfect” as long as reasonably reliable); see also
Mack, 196 Ariz. 541, ¶ 12, 2 P.3d at 104. Thus, it is not enough that Defendants identify
collateral irregularities with the Intoxilyzer, they must also show any such “anomalies” cause
the machine to be unreasonably unreliable.

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