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State v. Bernini
Citations: 207 P.3d 789; 220 Ariz. 536; 553 Ariz. Adv. Rep. 12; 2009 Ariz. App. LEXIS 80Docket: 2 CA-SA 2008-0078
Court: Court of Appeals of Arizona; April 7, 2009; Arizona; State Appellate Court
A special action was initiated by the State of Arizona concerning a ruling by Judge Deborah Bernini regarding the production of the source code for the Intoxilyzer 8000, used by the Tucson Police Department. Defendants, including Erica Daughters-White and twenty-four others charged with driving under the influence, argued they had a "substantial need" for the source code to prepare their defenses, claiming it was vital information not covered by existing disclosure requirements and that they could not obtain it through other means without undue hardship. Following a two-day evidentiary hearing, the judge ordered CMI, the manufacturer of the Intoxilyzer, to produce the source code, while clarifying that the Pima County Attorney's Office did not possess or control it, thus exempting the state from a Rule 15.1 obligation to disclose it. She recognized the defendants' right to challenge the reliability of the Intoxilyzer before a jury but ruled that the source code was not considered Brady material. During a subsequent hearing, the judge mandated that the state must procure the source code from CMI and serve a show cause order to CMI in Kentucky regarding contempt. The judge’s rationale was based on the state's better access to the information that the defendants were unable to obtain despite their efforts. In response, the state filed a petition for special action relief, seeking to overturn the orders related to CMI’s disclosure and the accompanying enforcement actions. The Kentucky court quashed orders requiring the disclosure of the Intoxilyzer 8000 source code, deeming it a trade secret. CMI indicated willingness to produce the source code if all parties agreed to a protective order and signed a nondisclosure agreement. The state’s motion for reconsideration to compel CMI to disclose the code was denied, and the court vacated its prior order due to a lack of jurisdiction over the out-of-state corporation. The state's request to vacate the orders was deemed moot. The remaining issue is whether the respondent judge abused her discretion in ordering the state to obtain and disclose the source code. The court accepted jurisdiction, noting that the state lacks an adequate remedy through appeal, and the matter is of statewide importance. Generally, trial court rulings on discovery are upheld unless an abuse of discretion is found, provided the factual findings are supported by reasonable evidence. The respondent judge found no independent obligation for the state to produce CMI's source code, as it lacked possession or control over it. However, there was insufficient evidence to support the judge's assertion that the state had better access to the source code than the defendants. The court reiterated that the state cannot be compelled to disclose information it does not possess. The state challenged the judge's finding that defendants had a "substantial need" for the source code to prepare their cases, arguing an abuse of discretion in this determination as well. However, resolution of this point was not essential to the special action at hand. The appellate court will not issue advisory opinions or address issues beyond what is necessary to resolve the current appeal. It is noted that the relevance of certain questions to future litigation is uncertain. The court declined to assess whether the respondent judge erred in determining that defendants had demonstrated a substantial need for the sought discovery. It found that the respondent judge legally erred and abused her discretion by ordering the state to produce the Intoxilyzer 8000 source code, which the state did not possess and could not obtain, without evidence that the state had better access to the materials than the defendants. Consequently, the court vacated the order from October 27, 2008, requiring the state to obtain the source code and specific software versions. Additionally, notes reference due process violations regarding suppression of favorable evidence and the defendants' request for dismissal or suppression of test results based on CMI's failure to disclose materials. During the hearing, defendants did not assert that the state had better access to the source code, instead expressing skepticism about CMI's willingness to disclose it.