Phoenix City Court | Intoxilyzer Data Dump | State v Hentges Stirling Law Library

State v. Hentges - DUI Criminalists Out of Control

The following links and materials are Internet resources listed here as a pro bono service by the Stirling Law Library. These links take you to Internet web sites of other individuals, groups, organizations, and governmental entities not associated with this web site. The Stirling Law Library is NOT an official City of Phoenix web site, nor is it in any way part of any official court web site. The information found here is provided as a service to the public. The information, court decisions, and positions of the parties change daily. Nothing posted here is warranted to be accurate. If you have a question about DUIs or pending hearings and motions, please call attorney Robert Bruce Stirling, II (602) 460-5136. Please read our Disclaimer. Note: the information below is merely our understanding and opinion of the events, pleadings, and motion hearings leading to the State v. Hentges decision. The timing of the discoveries may be a little off, and other attorneys may have made some of the discoveries attributed to others on this page. Corrections will be made where warranted. The information set forth below is all a matter of public record in Arizona.

The Arizona DUI Data Dump Motions

What are the Arizona ADAMS DUI Intoxilyzer 5000 motions all about?

The Arizona Department of Public Safety (DPS) and the City of Phoenix (PCL) crime labs maintain breath-testing machines used to test suspected alcohol impaired drivers in Phoenix and throughout Arizona. Laws and regulations require that these machines be periodically tested, calibrated, and, if needed, repaired. All test and service records are required to be kept and disclosed to prosecutors, defendants, judges, and juries for use during trials.

In the past, actual paper documents were kept on each machine. The records kept were P and Q forms, service and repair records, and the "evidence cards" printed by the breath-test machines. The P form reflected calibration tests performed on the breath-test machine every 31 days. The P form showed an expert if the machine was working "accurately." The Q form documented tests performed on the machine every 90 days. In addition to showing accuracy, the Q form results showed whether the machine was working "properly." To work "properly," the breath-test machine had to pass additional tests that showed all internal safeguards were "properly" working. (Example: even an improperly working clock is accurate twice a day.) The "evidence cards" were the printed results of tests performed by the machines on themselves.

The ADAMS DUI database software was installed in the DPS and PCL computers by the beginning of 1996. Information once kept on paper documents was now kept in digital form in computers. The "computerized" versions of the P and Q forms were renamed PP and QQ. Arizona regulations presuppose and require the existence of a computer database and a data entry if the PP and QQ forms are used.

The "computerization" of the paper records presented the crime labs with new opportunities. Before any computerized system was implemented, it first needed to be designed and tested. The crime labs selected the ADAMS database program designed and licensed by CMI, Inc., the manufacturer of the Intoxilyzer 5000 breath-testing machine. The Intoxilyzer 5000 is one of the best breath-testing machines in the world. Initially, the original ADAMS program was installed in lab computers. Later the labs requested changes in the program software. Apart from the law enforcement personnel involved in the design and implementation of the new computerized system, no defense attorneys, judges, or juries were told that the DPS crime lab paid CMI, Inc. to modify and tailor its ADAMS program to DPS specifications. A witness testifying in Phoenix on June 1, 1999 finally blurted out the design changes. These undisclosed and unauthorized design changes caused what is now known as the Arizona DUI Data Dump fiasco.

The DPS crime lab installed its first ADAMS database in December 1994. This initial installation of the original ADAMS program is referred to as ADAMS I. This period ended on October 15, 1997, when the software installed on EPROMs inside most Arizona Intoxilyzer 5000s was secretly changed by the crime labs. The new unauthorized EPROMS were loaded with the "Arizona" version of CMI, Inc.'s software instructions. The period thereafter is known as ADAMS II. See the ADAMS Timeline.

The DPS and PCL claimed their goal in implementing the original ADAMS system was to preserve ALL subject breath-test results, ALL calibration test results (31 day tests - forms "P" and "PP"), and ALL standard quality assurance procedures (90 day tests - forms "Q" and "QQ"). All calibration test results were to be recorded and kept in the ADAMS database. The data was supposed to be disclosed to law enforcement agencies, to the courts, and to defense attorneys. As originally manufactured and installed, the ADAMS database preserved ALL calibration test results performed on the Intoxilyzer 5000. Disclosure of calibration test results is mandated by the U.S. and Arizona Constitutions, rules of court, and by federal and Arizona case law.

Soon after implementation of the ADAMS system Phoenix attorneys, Samuel Costanzo, Clifford Girard, and many others, noticed that failed calibration test records were no longer found in reports disclosed by state and city prosecutors. Before the ADAMS program was installed at the end of 1995, it was common to see evidence of failed calibration tests. In stark contrast to prior years, from December 1995 through March 1998, there were NO reported FAILED calibration tests during a standard quality assurance procedure (90 day SQAP) in the entire State of Arizona, according to criminalist, Chester Flaxmayer. Costanzo, Girard, and others knew something was wrong. Costanzo told judges he could not prove it yet, but one day he would show there was something wrong with the DPS and the PCL database records.

Something was wrong and evidence slowly began to surface. A DPS memo revealed that on February 8, 1994, a DPS employee instructed all quality assurance specialists (QAS) in Arizona to conceal evidence. The QAS is the police officer that actually checks the breath-testing machine to ensure it is operating both accurately (i.e., the 30 days tests) and properly (i.e., the 90 day tests). The DPS employee memo instructed them, "DO NOT disclose malfunctions" of the breath-testing machine on Form "Q" "because the defense always gets the SQAP form!!!" Form "Q" is the 90-day standard quality assurance procedure (SQAP) form given to defense attorneys, judges, and juries. The DPS memo further instructed the QAS officers to record evidence of any repairs on another form that was NOT routinely disclosed to attorneys. The DPS memo said, "Don't give them anything that is not necessary and which might cause you grief while testifying." On April 14, 1995 the same DPS employee said in the "QAS Newsletter," "don't accept or put a failed calibration check on the form. . . ." The newsletter asked that the quality assurance specialists call their supervisors at home to deal with any failures.

In October 1995, a DPS employee taught at a continuing legal education seminar at Arizona State University to instruct defense lawyers and judges about the new ADAMS database system. All were taught ADAMS kept "everything," and that ADAMS data was transmitted throughout Arizona via DPS's ACJIS database system. No one ever revealed that the DPS and PCL were filtering failed calibration data from the ADAMS datbase as it was imported into the ACJIS database. Nothing was disclosed that revealed ACJIS data was different from the data found in the original ADAMS database. No mention of filtered data was ever disclosed. Prosecutors only disclosed the filtered ACJIS database reports. The ACJIS database reports were improperly named "ADAMS Inquiry Responses." All judges and defense attorneys believed these reports were from the original ADAMS database, not from a "filtered" DPS ACJIS database.

The PCL went online with the ADAMS database in January 1996. During this time the PCL was playing fast and loose with public records. In documenting test procedures performed on the breath-testing machines, the lab no longer printed calibration test results (i.e., evidence cards) from the machine itself. With a mere menu selection in the machine, the PCL manually suppressed the "print function" on the breath-test machine. Voilá - no more evidence cards. However, the functions were still listed on the machine maintenance forms. To hide that they were no longer following mandated procedures, the PCL employees still checked off that they "printed" the evidence cards when they did not. It was soon thereafter that defense attorneys discovered the PCL had certified that unperformed actions on the machine were, in fact, performed. To explain the false checklists they used in trials, the PCL employees claimed they followed a specific authorized test procedure ("PP"), and that they merely documented the "PP" results on a form approved for a different procedure ("P"). The PCL employees certified they performed actions on the "P" form checklist that were not performed. Crime lab employees checked off and signed the "P" form indicating the checked procedures were followed. These falsified "P" forms were disclosed to defense attorneys and used in jury trials to convict people accused of DUI. See Arizona Revised Statutes re: public records.

Faced with increased attorney demands for discovery of the DPS and the PCL ADAMS databases, the DPS criminalists knew changes were needed to their database systems (ADAMS & ACJIS). The DPS criminalists did not want defense attorneys exposing their scheme and using the database against them in court. The PCL employees began to worry about the ACJIS/DMV records, but they continued to use them.

On April 14, 1997, a DPS employee met with lawyers from the Maricopa County Attorney's Office regarding changes being made to the EPROM chip in the breath-testing machines used throughout Arizona. They discussed certain programming changes installed on the Arizona EPROM chip. The changes automated the suppression of the print cards (if there were no more evidence cards, there would be no further need to make false check marks on public records; no need to worry about automated "destruction" of public records - how can you destroy something that doesn't exist?), and automated the standard quality assurance procedure. At the same time, the change permitted the quality assurance specialist the opportunity to "abort" or "retry" a calibration test or a standard quality assurance procedure as many times as needed. When a final "pass" was obtained, ONLY the "pass" was recorded in the database. All evidence of "aborts" and/or "retries" was gone forever, and could never be used to "cause you grief while testifying." according to a DPS employee.

At the same April 14, 1997 meeting, prosecutors from the Maricopa County Attorney's Office agreed to "fight" defense motions for the disclosure of the public records contained in the ADAMS database. Routine discovery requests by defense attorneys throughout this time were fought by both the Maricopa County Attorney's Office and by the Phoenix Prosecutor's Office. Requests for any information beyond the most immediate before and after calibration tests were called "fishing expeditions." Prosecutors vehemently fought any request beyond the disclosed minimum before and after calibration test as irrelevant costly reports that were too burdensome to prepare. Both state and Phoenix prosecutors claimed any additional disclosure took forever to prepare (the entire Phoenix Crime Lab ADAMS database fit on three 1.4MB floppy discs). Judges took as gospel everything the prosecutors said. When lawyers from the Maricopa County Attorney's Office were deposed, they had no recall of the April 14, 1997 events. A DPS memo confirmed the meeting and the events. Phoenix judges were repeatedly told of the number of days and weeks needed to make copies of the data. The PCL employees claimed they had "no way to copy their data." The PCL claimed only the DPS crime lab could make the data available. Meanwhile, the DPS crime lab referred all inquiries to the prosecutors to fight defense requests for disclosure. At the same time, other Phoenix employees admitted that copying the requested data would not be difficult at all. Copying the data was as easy and "dragging and dropping."

In the summer of 1997, without Arizona Department of Health Services approval, the PCL changed its procedure regarding checking off and signing off on test procedures never performed. Rather than check off actions not performed, employees of the lab decided to scribble "n/a" on the checklist instead. Later, the PCL merely reprinted the checklist form with "N/A" already printed on it. Now there was no need for PCL employees to manually falsify on the preprinted form that they caused evidence cards to be printed. Remember, the manually suppressed print function no longer generated evidence cards from the Intoxilyzer 5000.

On October 15, 1997, EPROMs inside the Intoxilyzer 5000s throughout Arizona were changed with the newly programmed "Arizona" version. The programming changes eliminated retention of the six operational sub step results once reported by the earlier EPROM. The new EPROM allowed multiple unrecorded "retries" and multiple "aborts." All evidence of "retries" and "aborts" was erased once the Intoxilyzer finally "passed" a calibration test. Only the final "pass" was recorded. No one at the Arizona Department of Health Services knew about, much less approved of the EPROM changes. No one at the Arizona Department of Health Services knew what an EPROM was, much less what one did on a breath-testing machine. Without the EPROM, the machine did not function. Without the EPROM a breath-testing machine makes a great boat anchor. Contrary to its statutory mandate, the Arizona Department of Health Services was content to allow the DPS and the PCL to regulate themselves. The labs told ADHS that the system was new and improved. That was good enough for ADHS. No one sought independent testing and verification of the "new and improved" modified system and design. Meanwhile, prosecutors in Arizona ignored their responsibility to oversee the DPS and the Phoenix crime labs. Prosecutors relinquished their responsibility to control the discovery process. Over five years passed without voluntary disclosure of the DPS and the PCL modified databases.

Defense attorneys were seething and closing in. Attacks were launched at the EPROM change without knowing the details of the programming changes. Phoenix Crime Lab employees testified in court they knew nothing about the EPROM software changes, and denied they had anything to do with them. PCL employees merely installed the EPROMs at DPS's request. The new Phoenix EPROMs supposedly just showed up without any invoice, instructions, or any other written documentation. Judges bought this story and were afraid of anything new, and they knew nothing about computers. Attorney Martin McAulliffe and others were getting warmer with each new disputed discovery request. McAulliffe was one of the first to challenge the EPROM change in February 1999, and he prevailed in a decision made by Judge Mary Ann Majestic in Tempe, Arizona. Judge Majestic ruled in his favor on the EPROM change, finding the state's conduct was "shocking to the universal sense of justice." McAulliffe's Tempe victory was followed quickly by another in State v. Busarello in Phoenix Municipal Court.

At the end of May 1999, discussions with Sedona and Prescott attorneys, James Lerch and Daniel Furlong and others, revealed evidence of a "filtered" hidden database. They discovered a fax transmission concerning deleted and rerun calibration tests at the DPS Crime Lab. Within a week, Daniel Furlong took the deposition of a DPS Crime Lab employee and confronted the employee with the deleted and rerun calibration records. The cat was out of the bag.

Within days, attorneys Lerch and Furlong shared their information with Phoenix attorneys, Clifford Girard, Samuel Costanzo, Edward Loss, John Phebus, Daniel Carrion, Melanie Beauchamp, Randall Callender, Patricia O'Connor, and Bruce Stirling, who met weekly at Girard's office to discuss the missing failed calibration test records, EPROMs, and other DUI issues. Communication with attorneys around the state was established and information shared. Questions were presented to criminalist, Chester Flaxmayer, who explained what he then knew of the database to the attorneys. Within days Mr. Girard filed a motion to dismiss and a motion for additional discovery. He filed about 30 requests for discovery in State v. Meza. The state objected to his requests, produced very little data, and claimed numerous times they had produced "everything." Prosecutors attacked Mr. Girard's "fishing expedition."

[Note: Over a year later, prosecutors and crime lab employees had to answer questions about an undisclosed failed calibration test performed on the same machine, on the same date, and at the same time as the defendant's test in Girard's case. The state failed to explain why its Phoenix Crime Lab criminalists and prosecutors couldn't find the deleted failed test when Chester Flaxmayer, Randall Callender, and Clifford Girard discovered it six months after Girard's jury returned a hung verdict. A hearing was set for May 21, 2000 before Judge McVey in Maricopa County Superior Court. Judge Michael McVey finally ordered the breath reading thrown out of court on September 29, 2000. Click here for a copy of his order finding the prosecutors and the Phoenix Crime Lab criminalists guilty of "GROSS NEGLIGENCE! -- Requires Win98 or a .tif viewer - coming soon in Acrobat Reader]

Even the architects, creators, and administrators of the state's new database claimed they could not find the records Judge McVey ordered them to produce. At least that's their story, and they are sticking to it. In the end, the Phoenix Crime Lab criminalist did not know why he deleted evidence of the failed calibration test. He admitted he had no idea that evidence of his attempted deletions was stored in the database's "BFMLOGG," i.e., trash bin. If the system designers did not know about the "BFMLOGG," what chance did defendants have to find deleted tests?

On June 1, 1999, crime lab employees from DPS and Phoenix testified and admitted to Mr. Girard that there were two databases. DPS and PCL employees testified they were "filtering" ADAMS data through the ACJIS database and providing it to defense attorneys, judges, and juries. They admitted the ACJIS database flagged failed calibration tests imported from the ADAMS database. The flagged tests were then "filtered" from the distributed ACJIS database. None of this information was previously disclosed in OVER FIVE YEARS of state responses to requests for discovery. There was about a two year period at the inception of the new system where the gate keeper of the DPS databases was unable to override the programming that "filtered" the flagged failed calibration tests. This became a real problem after the lab finally discovered what it termed a "valid" failed calibration test. A specific override function was added to the software program to correct this minor flaw. Samuel Costanzo was right.

Shock waves went through the defense community. The new revelations were reviewed and considered by defense attorneys. The lawyers had earlier filed motions to dismiss on the unauthorized EPROM changes. State and city prosecutors always fought their motions for additional discovery. The halls of justice began to quake as new revelations were admitted daily. Communication among attorneys increased. Christopher Hildebrand, a Phoenix attorney, traveled to Kentucky to take the depositions of employees of the manufacturer of the Intoxilyzer 5000. His effort produced documents never disclosed by the DPS, or the PCL, which were pivotal in proving the DPS and the PCL misconduct.

In short, the defense attorneys and criminalist Flaxmayer discovered the state and city crime labs kept two databases. Like two sets of accounting books. One database was called ADAMS, which preserved everything except "aborts," "repeats," and the six operational sub steps of the SQAP. Note: the DPS asked the manufacturer to modify the original software - the original program kept everything. A second database, ACJIS, was used by the DPS to "filter" the ADAMS records. Crime lab employees also "moved" records within the ADAMS database from one file to another (i.e. tried to delete). It was the equivalent of moving files in Windows to the trash Recycle Bin, according to Chester Flaxmayer. However, when the crime lab employees realized the files they "moved" were still in the Recycle Bin, they claimed "nothing was lost," and that the "database saved everything." Hey, but they never "deleted" anything, according to their testimony. In contrast to their testimony, crime lab employees faxed each other handwritten documents that asked, should these failed tests be "deleted?" The PCL did not routinely keep copies of the faxes.

The so-called "ADAMS Inquiry Response" disclosed by the Phoenix and DPS crime labs for court use was not generated from the ADAMS database at all. The response was from the "filtered" DPS ACJIS database. It was and is routinely introduced into evidence in Arizona jury trials and motion hearings. The report is still used today in Arizona Department of Motor Vehicle Administrative proceedings! Administrative hearings at MVD are another story altogether. . . . Licenses are being revoked and suspended today based on filtered "ADAMS Inquiry Response" reports from ACJIS. The DPS and the PCL provide defendants, judges, juries, and the MVD with "filtered" data, which deprives defendants of potentially exculpatory evidence. The PCL criminalist, when asked, could not define what "exculpatory" meant.

After a few hearings were held on the EPROM change of October 15, 1997, defense attorneys heard a "new spin" on why the "filtering" was needed. The state's witnesses now stated, "there was not enough memory on the EPROM" to keep the results of the six operational sub-steps in the 90-day standard quality assurance procedure. This "new spin" was quite different from the deposition testimony of the manufacturer's programmer, who said the DPS employees never mentioned any desire to retain the sub-step results. The amount of memory was not even discussed. Initial correspondence between the DPS employees and the manufacturer show the DPS employees no longer needed, nor wanted, to save the existing ADAMS records. The letter also said the DPS preferred not to store the existing records in ADAMS because disclosure of the records to defense attorneys "created extra work." The DPS only wanted the function and accuracy "passes" recorded. Memory size on the EPROM (they come in many sizes - just like hard drives) was injected into the debate after-the-fact.

Other new spins surfaced during the motion hearings. A split of opinion developed between the DPS and the Phoenix crime labs regarding the import of "concurrent calibration" tests. These tests are performed by the breath-test machine on itself when a defendant blows into the machine. DPS believed "concurrent calibration" tests were the answer to all of its problems. DPS experts told judges the "concurrent calibration" tests made the system foolproof. Emphasis on the 91-day standard quality assurance procedures (SQAP) that ensured the machine was working "properly" was suddenly minimized. All eggs were placed into the "concurrent calibration" basket. The state's positions shifted like the sands of the Sahara Desert. Unfortunately, the PCL employees had always testified in years past that "concurrent calibration" tests were not true "calibration" tests at all because they were performed by mere police officers. They were nothing more than mere "reference" checks. They were not performed by quality assurance specialists, as the regulations required. Not a problem for the state. The PCL crime lab was fighting its 1300+ Hentges motions in Phoenix City Court, while the DPS crime lab was fighting about 600 cases in Maricopa County Superior before a different judge. The PCL jumped onto the "concurrent calibration" test bandwagon and tried to minimize its employees' prior testimony. Defense attorneys were happy to make them eat their words.

Another "new spin" surfaced in Arizona's rural counties. The DPS expert who testified earlier in Phoenix traveled to Kingman, Arizona, where he now described the EPROM change as a mere "upgrade" on the Intoxilyzer 5000. "Upgrade" was a nice word that judges could understand. It was a word Microsoft made us all enjoy. It was another easy way to mislead the court.

When the same DPS witness was asked by Glendale City Judge, John D. Burkholder why the unfiltered ADAMS database was never disclosed to the defense over five-and-a-half-years, the witness said crime lab employees did not wish to be "AMBUSHED" in court. Immediate signs of concern appeared on the judge's face. Judge Burkholder again asked if there "were any OTHER reasons" why the information was never disclosed? The DPS employee rambled a bit before concluding that their concern about "being ambushed" in court was pretty much it. Can you say, "bad faith?" Judge Burkholder was not impressed and found bad faith. Judge Burkholder dismissed 88 cases in a single hearing [Click here]. Need a copy of the motion?

On April 14, 2000, Judge Michael K. Carroll suppressed over 1300 breath-test results [Click HERE - Win 98 required] in a consolidated motion hearing in State v. Hentges.

Documents received on May 4, 2000 show the Phoenix City Prosecutor's Office continues to object to any attempt to apply Judge Carroll's order to cases filed with dates of violation prior to July 23, 1999. Many old warrant cases and refiled cases fall squarely within Judge Carroll's ruling. The pleading filed by the state attaches a lower court appellate decision authored by Superior Court Judge Steven D. Sheldon. The decision is an unreported case from superior court. It is not a published opinion from the Arizona Court of Appeals, or from the Arizona Supreme Court. What were you taught about citing to unpublished "authority" in law school? Furthermore, the case concerns an earlier motion filed by Phoenix Attorney, Martin McAulliffe, well before any of the June 1, 1999 revelations about hidden "filtered" data. The decision also predates the Glendale City Court's finding of BAD FAITH. Even Judge Burkholder did not hear all of the newly discovered evidence in his earlier hearing. More evidence keeps emerging. To claim misled and misinformed judges' earlier rulings apply now is disingenuous. The poor records created in their earlier hearings are not relevant to the issues presented in State v. Hentges. Continued attempts to mislead and to exclude these cases from the operation of Judge Carroll's ruling is just further evidence of BAD FAITH on the part of the state. The Phoenix Prosecutor's Office, as recently as November 20, 2000, objected to an attempted suppression of evidence in a case that should have been part of the original Hentges consolidation. A hearing on the matter produced evidence of a "replaced fuse," characterized by the Phoenix Crime Lab as "preventive maintenance." When was the last time you changed a fuse in your car or at your house before the fuse actually blew? The state denied it was a "repair" of the breath-test machine. Repairs require that machines be removed from service, documented, and fixed. Evidence of repairs is exculpatory. Defendants, their attorneys, and the courts need to know these things. Judge Michael Lester suppressed the breath-test results.

Note: the above recitation is merely our understanding and opinion of the events, pleadings, and motion hearings leading to the State v. Hentges decision. The timing of the discoveries may be a little off, and other attorneys may have made some of the discoveries attributed to others on this page. Corrections will be made where warranted. The information set forth above is all a matter of public record in Arizona.

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Where can I find information about the City of Phoenix consolidated cases?

Information about the consolidated State v. Hentges case can be obtained by contacting the Phoenix Municipal Court (602) 261-8152. You can find a great deal of information by scrolling down this page. Included on this site are: 1) the master motion, 2) the stipulations reached during the hearing, 3) and the final order of Judge Michael Carroll. Several other orders and briefs are linked elsewhere on this page. Click on the above numbered items for the documents described. The master motion and the stipulations are self-executing zipped files. See instructions below. Windows 98 is required to view Judge Carroll's order. The order will take time to read online. It is quicker to download the order to your computer.

NOTE: The 1300-1700 Hentges cases are now on appeal in Maricopa County Superior Court, 101 West Jefferson, Phoenix, Arizona 85003. The appeal was assigned to Judge Steven D. Sheldon.

NOTE ALSO: The near 500 felony DUI cases pending in Maricopa County Superior Court are scheduled for a hearing before Judge Kaufman on October 24, 2000. These are cases that were pending before Judge David Cole, who recused himself. Approximately 69 cases of this group were heard in a separate hearing by Judge Susan Bolton, who after considering the case for months, finally entered an order DENYING any relief to the defendants.

INSTRUCTIONS FOR UNZIPPING FILES

First save the file named. Watch and remember where you save the file! Pay attention and write down the file name! Once saved, exit your word processor and go to Windows Explorer or to Windows File Manager ( hit "start" button on bottom left of screen, go to "run" and type "winfile").

Find the location where you saved the file and then double-click on the file name. The file will automatically unzip itself without you needing any unzipping software.

DO NOT TRY TO OPEN THE ZIPPED FILE IN PKUNZIP OR ANY OTHER UNZIPPING PROGRAM! DO NOT TRY TO OPEN THE ZIPPED FILE IN WORD or WORDPERFECT! Only open the file in your word processor program AFTER it is unzipped.

Unless you specify where the file will be saved, it will probably go to your "Windows/temp" subdirectory. If you lost it, look for it there.

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If I am charged with a DUI in Phoenix City Court today, what can I do?

Defendants can contact a competent DUI attorney, and they can file a motion to dismiss the charges and/or to suppress the breath-test results. The State v. Hentges ruling applies only to cases consolidated in that hearing. The cut-off date for inclusion in the Hentges ruling was July 23, 1999, a meaningless date selected by prosecutors, who claim the Phoenix Crime Lab "changed" their deceitful lab practices after that date.

NOTE: No matter what attorney you retain, you WILL ABSOLUTELY NEED to retain the expert witness services of criminalist, Chester Flaxmayer. He can be contacted at (480) 504-6953 - you can FAX him at (480) 502-6954.

The Arizona version of the EPROM installed in the Intoxilyzer 5000EN is NOT the same EPROM used after October 15, 1997 in the Intoxilyzer 5000. New EPROMS were installed on the EN (enhanced) model. However, immediate problems were encountered, and it appears the EPROMS were again changed in March 2000. No disclosure regarding the new EPROMs has been made, notwithstanding the many requests therefor. It's deja vu all over again. EPROM is defined as "erasable read-only memory." An EPROM is like a mini-hard drive in a computer. It has software installed on it. Follow the above EPROM link to learn more about them. Apart from some additional manual record keeping, nothing appears to have changed. Lead counsel strongly urge attorneys to continue to file motions to dismiss and/or suppress.

The consolidated cases in Phoenix Municipal Court captioned State v. Hentges were appealed and the defendants prevailed. The Phoenix City Prosecutor filed a special action in the Arizona Court of Appeals seeking judicial review of the appellate decision. The matter is set for hearing on August 7, 2001 in Division One of the Arizona Court of Appeals.

The motion to suppress/dismiss in the second group of Phoenix consolidated cases was captioned State v. Albert. The motion applied only to about 88 cases. The motion was voluntarily withdrawn, and no new consolidated motion has been filed. See the section on State v. Albert below.

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Who can I contact for more information about the ADAMS DUI Intoxilyzer 5000 issues?

Contact any competent DUI attorney of your choosing. The attorneys below are well aware of the issues presented in the State v. Hentges cases. The information listed on this page should not be construed as legal advice of any kind. It is merely reporting what transpired in the court proceedings, witness interviews, and what is set forth in the pleadings of the parties. Issues and dates change daily, so do not rely on the information on this web site. Never rely on any information from any web site! All telephone numbers needed to check anything set forth on this page are included here.

In Phoenix contact:

Robert Bruce Stirling, II (602) 460-5631

W. Clifford Girard, Jr. (602) 252-7160

Note: In Prescott and Northern Arizona, contact attorneys:

James C. Lerch (520) 445-3631 - Daniel F. Furlong (520) 778-6906

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Judge Michael K. Carroll's ruling suppressed about 1371 breath-tests in Phoenix City Court.

Judge Michael K. Carroll issued a 17-page-order in State v. Hentges (requires Win98 to view), the Phoenix Municipal Court DUI cases consolidated for hearing. The order suppressed ALL of the breath-test results in the consolidated cases. The suppression order applied to 1300 - 1700 consolidated cases. The City of Phoenix Prosecutor's Office dismissed all DUI charges on those consolidated cases [except the juvenile cases!] to pursue a lower court appeal. According the City of Phoenix Prosecutors, all civil "backup" charges will remain on hold and await the appellate court decision. All Rule 8 time limits are stayed for extraordinary circumstances. You may, however, proceed to disposition of the "backup" charges by contacting the Phoenix City Prosecutor's Office. According to Phoenix City Prosecutor, Paul Badalucco, all original plea offers will remain open pending the outcome of the appeal, provided you never set the case to trial.

Judge Carroll's opinion states, "[d]ue process 'requires that suspects have a 'fair chance' to obtain potentially exculpatory evidence. Montano v. Superior Court In and For Pima County, 149 Ariz. 345, 391; 317 P.2d 271, 277 (1986). Emphasis added. Clearly, these defendants, at the time their cases came into the justice system, did not have that 'fair chance.'" A scanned version of the original order is available for download HERE ( in .tif format). You must have either Windows 98 or a .tif viewer program to view the file. Note: the file is a little large, so please allow for download time. It is over 1MB. Be patient.

A supplemental order was signed on April 21, 2000, which names those cases covered by Judge Carroll's ruling in State v. Hentges. It can be viewed at the Phoenix Municipal Court Records Office, located at 300 West Washington, 3rd Floor, Phoenix, Arizona 85003.

If you are using Windows 95 or something other than Windows 98, please go to Tucows to download a free .tif viewer program. Go to http://tucows.inficad.com/grap95.html to see all of the selections available. Note: you must select a program that permits viewing of multiple .tif images in a single file.

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Is Judge Carroll's suppression order on appeal in State v. Hentges?

No more - the appeal was successfully defended. The Arizona Court of Appeals on August 8, 2001, refused to hear the state's challenge the appellate victory. The City of Phoenix Prosecutor's Office refiled the remainder of all consolidated cases in Phoenix Municipal Court. The matters will proceed without the suppressed breath test readings. Click here to obtain copy of the defendants' opening appellate brief (self-executing zip file), which was filed on January 29, 2001.

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Glendale City Court Judge John D. Burkholder found "bad faith" and dismissed 88 cases.

On August 31, 1999, Glendale Municipal Court Judge, John D. Burkholder, in a 41-page-opinion - click HERE, dismissed 88 DUI charges (the (A)(1) charges only) after he found prosecutors acted in bad faith for not disclosing failed calibration tests to defense counsel and to the Court. The prosecutors were found responsible for the Arizona Department of Public Safety Crime Lab's failure to disclose the hidden records to the court and to the defense. To download the self-executing compressed WordPerfect file, click HERE.

Judge Burkholder ruled, "It is hereby ordered granting the defendants' consolidated motion to suppress. It is further ordered dismissing all charges for violation of A.R.S. §29-692(A)(2) or 28-1381(A)(2) for having an alcohol concentration of .010 [sic] or more within two hours of driving. It is further ordered dismissing all charges for violation of A.R.S. §28-1382(A) for extreme DUI . . . ."

Robert Robinson is the Glendale defense attorney who handled and won the consolidated cases for the defense. Well done, Mr. Robinson. The state appealed and lost this decision before the Maricopa County Superior Court. See Judge Myers' decision below.On October 31, 2000, Judge Robert Myers upheld Judge Burkholder's finding of "bad faith."

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Tell me the status of the State v. Albert consolidated cases in the City of Phoenix.

These consolidated cases have violation dates of July 23, 1999 through the present. Lead counsel prior to the scheduled hearing withdrew the motion. At the time the motion was withdrawn, only a small number of cases were consolidated for hearing. All remaining cases were returned to their courtrooms of origin for further proceedings. Click here for a copy of Judge Michael Lester's ORIGINAL ruling in the State v. Albert consolidation motion. New DUI cases should continue to file motions to dismiss and/or suppress, according to lead counsel.

The Albert group up to May 8, 2000, consisted of about 2000 additional cases. When it was withdrawn it was less than 100. This is how the cases were divided:

1. Albert consisted of the 188 cases found on Exhibit 1 in the original "deconsolidation" motion. The number is now smaller. Albert cases commenced with dates of violation on July 23, 1999. There was some debate still about the beginning date, but Judge Carroll said cases with July 23, 1999 dates were part of Albert. Approximately 2000 cases with dates from July 23, 1999 through December 31, 1999 are factually similar.

2. The cases not included in the "188" above were called the "parking lot," for lack of a better name. While not included in the Albert "188," any ruling made in Albert would have applied to these 1800+ cases, according to any reasonable interpretation of what was discussed before Judge Carroll on May 8, 9, and 19th. These 1800 cases were included in the Albert consolidated group until May 8, 2000. Officially, they were to remain postponed pending the Albert decision. They have all been sent back to their courtrooms of origin.

3. Cases with dates of violation after December 31, 1999 (all Y2k cases) are still believed to be factually similar. The investigation continues. Discovery is ongoing. Judge Carroll separated this group from the Albert cases because the Phoenix Crime Lab allegedly installed the Y2k compliant version of ADAMS on its computers sometime prior to the Y2k "rollover." The Y2k compliant version of the ADAMS software is named COBRA. Installation of the new program was deemed sufficient cause to bail on these cases. Therefore, they were to be consolidated into a third "COBRA" consolidated hearing in the future. The EPROM "Data Dump" issues remain the same. Apart from being Y2k compliant, there is no reason to believe COBRA is much different from the original ADAMS program. Intoxilyzer 5000EN machines are now being used in the Phoenix DUI vans. Many of the breath machines used in Phoenix are Intoxilyzer 5000s ("66" series), NOT 5000ENs ("68" series). On May 19, 2000, only days before the Albert hearing was scheduled to begin on May 31, 2000, lead counsel learned the 5000EN machine had a new EPROM installed on it; allegedly one with greater memory capacity. Nothing more is now known about it. Investigation of the EPROM has been slow due to the failure of the state to produce requested documents. The COBRA cases continue to grow in number. The DPS crime lab also went to COBRA in 2000.

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Explain the status of felony ADAMS DUI motions in Maricopa County Superior Court.

The motions to suppress the breath alcohol readings in the 69 consolidated cases before Judge Susan Bolton were DENIED. The hearing commenced on April 4, 2000 and finished on May 18, 2000. Judge Bolton finally ruled in August, 2000. She only decided cases where a notice of change of judge was filed in Judge David Cole's consolidated motion hearing.

April 4-5, 2000 -- THE MAIN EVENT IN MARICOPA COUNTY SUPERIOR COURT

Once thought to be the main event in Maricopa County Superior Court, Judge David Cole's hearing involving approximately 800 ADAMS DUI cases was stayed until April 12, 2000 so a special action could be filed on Judge Kaufmann's denial of a motion alleging a conflict of interest. The special action was filed and Division One, of the Arizona Court of Appeals, denied it. Judge Cole recused himself, and the cases remain before Judge Kaufman. Judge Kaufman ruled on December 18, 2000, denying the "generic" motions to dismiss filed in the 800 or so cases. See quote from decision below.

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What's the status of the felony ADAMS DUI Intoxilyzer 5000 motions in Mohave County?

The motion was denied in September 2000.

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What's the status of the felony ADAMS DUI motions in Santa Cruz County?

Contact attorney, William Rothstein (520) 287-5744.

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What's NEW? - Updates

1. Judge Michael K. Carroll issued an order on May 16, 2000, which named additional cases to the original 1300+ consolidated cases in State v. Hentges. There are close to 1700 now in the group. Click here to get the order (self-executing zip file). The cases are on appeal before Judge Sheldon, of the Maricopa County Superior Court, 101 West Jefferson, Phoenix, Arizona 85003. A ruling is expected sometime in February, 2001. Click here to obtain copy of the defendants' opening appellate brief (self-executing zip file), which was filed on January 29, 2001.

2. Judge Kaufman started a hearing on about 800 felony DUIs on October 24, 2000 in Maricopa County Superior Court, 101 West Jefferson, Phoenix, Arizona 85003. Judge Kaufman ruled on December 18, 2000, denying the "generic" motions to dismiss filed in the 800 or so cases. Judge Kaufman said,

"The defense sincerely believes the EPROM program change [w]as designed for tactical advantage. It appears to this Court, that notwithstanding scattered memoranda that cause some concern, the primary motivation was to save time and to avoid unnecessary court appearances for busy laboratory personnel. The evidence simply does not establish malice, or intent to convict innocent people or impermissible desire for tactical advantage.

This Court views the decision to truncate record keeping as only partially explained by the State's argument based on limited computer memory available on EPROM chips. Avoiding recordation of limited types of information was thereby an unwise decision, not 'bad faith.'

. . .

CONCLUSION

Most cases do not justify granting any relief.

Remedies for late disclosure depend upon facts of individual cases not presented at the consolidated hearing. Similarly, failures to create or retain evidence are unimportant in most of these cases; but they may be important, in varying degrees, in relatively few cases. In those cases remedies should be tailored to the availability of information and case specific facts.

The motions are denied for the reasons stated above."

[Note: each defendant must now argue the merits of his individual case]

3. Judge Susan Bolton denied relief in about 69 felony cases in August, 2000. Judge Bolton apparently found nothing wrong with the matters set forth above.

4. Judge Michael McVey suppressed a breath reading on September 29, 2000, finding the Phoenix Crime Lab and the Maricopa County Attorney's Office guilty of "gross negligence" for not disclosing exculpatory public records to the defense until SIX MONTHS AFTER the jury trial. See Order here - Requires Windows 98 or a .tif-viewing program to view.

5. The lower court appeal of Judge John D. Burkholder's finding of "bad faith" on the part of prosecutors for not disclosing failed calibration tests was upheld on October 31, 2000 by the Honorable Robert D. Myers, of the Maricopa County Superior Court. See Order here - in Adobe Acrobat format.

6. In Tucson, Pima County Superior Court Judge Charles S. Sabalos, a former Pima County Deputy County Attorney, dismissed seven (7) felony DUI cases with prejudice and found the State guilty of "bad faith" because it intentionally, or at least knowingly, allowed the systematic destruction of exculpatory evidence. Judge Sabalos also found the State acted in "bad faith" by permitting the destruction of ADAMS data to avoid the possibility that disclosure of the data would lead to additional litigation regarding the actions of the State. Because the defendants established that the State acted in "bad faith" the law requires that the cases be dismissed. See Order here - Requires Windows 98 or a .tif-viewing program to view.

The Tucson cases are different from most other cases in Arizona. In Tucson the Intoxilyzer 5000 breath-testing machine data was never saved. The memory inside the machine can retain approximately 100 test results. If the data is not downloaded into another computer and saved in the ADAMS or COBRA programs, the data will be destroyed when the 101st test begins to write over the data from the first 100 tests. Destroying the collected data deprives defendants of evidence needed to challenge breath-test results. The Tucson type motion has been dubbed the "Anti-ADAMS" motion.

For additional Archived Information on the Maricopa County and Phoenix Municipal Court cases, click HERE.

Please email us with your updates to mail to: SNAFU@stirlinglaw.com

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