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Arizona Court Rejects Constitutional Challenge to DUI Conviction The Arizona Court of Appeals recently decided the case of State v. Lindner, No. 1CA-CR09-0583 (Ariz.App. 2010), in which a defendant, Michael Lindner, appealed his conviction for DUI on the grounds that the prosecution had violated his constitutional rights by refusing to allow him to access the source code of the breath test device used on him, or to cross-examine the person who created the code. A few years ago, this issue probably would never have made it to the Court of Appeals, but Mr. Lindner's argument was given a constitutional megaphone in 2009 when the U.S. Supreme Court ruled on the Melendez-Diaz case. Accordingly, the Court of Appeals analyzed the issue but ultimately decided that Mr. Lindner did not have the right to access to code or question its author. About a year ago, the U.S. Supreme Court decided Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which put forth new requirements for evidence in criminal cases. Briefly, the case involved a prosecution for possession of cocaine in which the prosecution had sought to use a lab report identifying a substance found at the scene of the arrest as cocaine. The issue was a conflict between the Rules of Evidence, which allow the records of public agencies and businesses to be admitted in certain circumstances, and the 6th Amendment which requires criminal defendants to be able to confront their accusers. The report in this case was prepared by a state crime lab and the prosecution wished to use the report without having the chemist who wrote it testify. The court ruled that the report was inadmissible unless the chemist was available to be cross-examined and that the same rule applied to any document that was similarly "testimonial."Mr. Lindner was convicted of DUI in municipal court, largely on the basis of an Intoxilyzer printout. He requested access to the source code and the opportunity to cross-examine the code's creator but was denied. The prosecution relied on A.R.S. 28-1323 (A) and (C), which say that the results of a breath test for determining BAC are admissible once the prosecution shows that the testing device was working properly and operated by a qualified person. Moreover, the statute says that the test results are admissible even if one party cannot obtain the device's software for analysis. The municipal court agreed with the prosecution and allowed the test result into evidence. Mr. Lindner appealed to the superior court, which ruled that the use of the test printout did not violate his rights. Mr. Lindner then appealed once again to the Court of Appeals, which began its analysis with the observation that Melendez-Diaz does not apply to all records, only to those which are "testimonial." Certificates that a device is working correctly, for example, are not testimonial because the agency keeps them for its own internal use, not as evidence against individual defendants. Similarly, the court interpreted the Melendez-Diaz decision as not requiring the defendant to have access to the Intoxilyzer source code nor to its creator. Since the device and its source code were created for general use in the field of blood alcohol detection, they are not considered testimonial. Therefore, Mr. Lindner had no right to the source code or to question its creator .The Court of Appeals upheld the decision of the courts below and affirmed Mr. Lindner's DUI conviction. Because he was convicted of extreme DUI (defined as having a BAC between 0.15 and 0.20 in Arizona), he will face mandatory jail time, fines, and a license suspension.

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