by Mark Andersen

Many people think that all it takes to get a DUI is to get stopped, tested by a machine that says the alcohol blood level is above a .08, arrested….guilty.

The argument goes that machines are inherently reliable and aren’t going to mislead us. The machine objectively just spits out the facts. Well in the majority of cases, this logic carries the day and people who are arrested and cited for DUI take their lumps and move on with their life, hopefully, never to sit in the backseat of a police car or courtroom again.

However, a competent DUI attorney’s analysis of a case is more involved. In a DUI trial, machines don’t testify, people do. And in order for people to testify in court about the results of a blood test, they must develop some expertise with regard to the machine. There are rules governing who may qualify to be an expert on this topic and what scientific methods they must rely. Before a jury can hear about the test results through an expert, a judge makes a determination whether the testimony is admissible.

In the Superior Court, DUI attorneys Cliff Girard, Mark Dubiel, Lawrence Koplow and Joe St. Louis have mounted a credible challenge to the reliability of the Scottsdale crime lab’s techniques for certifying blood test results on a particular machine that they use. So much so that a Maricopa County Superior Court commissioner ruled this week that the results of the test used by the machine are inadmissible in the 11 felony cases that were before him.

This challenge began about two and a half years ago when DUI attorney Cliff Girard discovered that his client’s test results had a “data drop” and that there were some labeling problems at the time his client’s test was run. He and the other attorneys who joined with him began attempting to discover the reasons behind these problems. What they discovered is that the problems with this machine were computer software problems that were seriously undermining the results being reported. Despite the problems discovered and the expert opinions mounting, the Scottsdale crime lab has not taken the machine out of service for a “root cause analysis.”

During this litigation, the Arizona Republic got a hold of some internal emails from Scottsdale Crime lab employee “experts” where they discussed and admitted problems with the machine. These same Scottsdale Crime Lab experts, however, continued to testify in trial as to the reliability of the machine and the methodology used. Nor did they disclose these impeaching emails to defense attorneys voluntarily. One telling email between city crime lab expert and an employee from the machine’s manufacturer Perkins Elmer said “Let’s work on resolving the issue quickly so you don’t have to face defense attorney’s challenges in court related to our malfunctioning equipment.”

This litigation spanned over two and a half years and involved a 17 day evidentiary hearing in the Superior Court. This week the Superior Court Commissioner ruled that the City of Scottsdale Crime lab experts did not reliably apply the principles and methods required by the evidentiary rules and that those blood tests for those 11 defendants were suppressed- meaning the questionable evidence would not be provided to the jury.

The prosecution has stated that they will appeal this ruling. The litigation continues. We continue to monitor this litigation closely in order to explore the benefits to our clients at Davis Miles McGuire Gardner.

If you are involved in a DUI case or other simple or complex issue and want experienced legal representation, please call 480-733-6800 and ask to speak with Mark Andersen, or visit our website at