IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Petitioner,

 v. 

HON. DEBORAH BERNINI, Judge of

the Superior Court of the State of

Arizona, in and for the County of Pima,

Respondent,

and 

ERICA LEA DAUGHTERS-WHITE;

SEAN AARON JOHNSON; JOHN

CLIFTON LIVINGSTON; MYRON

MONTANA; HILDA ALDAY; JONI

MARI LUJAN; JUAN CARLOS

RODRIGUEZ; CRISTAL MIKESELL;

JAMES FREEMAN; MARTIN LEE

HULETT, JR.; JOHNNIE WILLIE

TREADWAY; ARLENE KANDIS

TONEY; JAMES BRADLEY

BROWNING; JUSTIN JEFFREY

STEVENS; ROMEO ALONSO

RODRIGUEZ; EVERETT MORGAN

RUBIO; RICKY JOSEPH WILLIAMS;

BELINDA MARIE SANCHEZ; JARED

SHERER; LAURA JEAN ROWELL;

MATTHEW FILIP; STEVEN

ANTHONY BONIN; RYAN A.

BRAYFIELD; KASEY LACH; AARON

C. TRITSCHLER; and MARTIN

HENRY SANDERS; 

Real Parties in Interest.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

2 CA-SA 2008-0078

DEPARTMENT A

O P I N I O N

APR -7 2009

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO
2

SPECIAL ACTION PROCEEDING

Pima County Cause Nos. CR-20071798, CR-20072680, CR-20070902, CR-20071499, CR20071561, CR-20073079, CR-20073256, CR-20073391, CR-20073480, CR-20073727, CR20073946, CR-20074048, CR-20074156, CR-20074301, CR-20074655, CR-20074805, CR20074875, CR-20080057, CR-20080301, CR-20080687, CR-20080812, CR-20080849, CR20080876, CR-20081388, CR-20082259, CR-20082295, CR-20083394 (Consolidated)

JURISDICTION ACCEPTED; RELIEF GRANTED

Barbara LaWall, Pima County Attorney

 By Jacob R. Lines

Nesci, St. Louis & West PLLC

 By James Nesci

Tucson

Attorneys for Petitioner

Tucson

Attorneys for Real Parties in Interest

E S P I N O S A, Judge. 

¶1 This special action by the state arises from consolidated cases in which real

parties in interest, Erica Daughters-White and twenty-four other defendants charged with

driving with an alcohol concentration of .08 or more have sought production of the software

configuration (“source code”) of the Intoxilyzer 8000, the breath-testing equipment currently

used by the Tucson Police Department. Defendants argued that they had a “substantial need”

for the source code in preparing their defenses; that the source code was “material and

information not otherwise covered” in the disclosure required by Rule 15.1, Ariz. R. Crim.

P.; and that they were “unable . . . without undue hardship to obtain the substantial equivalent

by other means.” 
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the 1

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment . . . .”).

In their motion, defendants sought dismissal of their cases or suppression of the 2

Intoxilyzer 8000 test results as a sanction for CMI’s failure to disclose the materials. 

3

¶2 On September 10, 2008, after a two-day evidentiary hearing, the respondent

judge ordered that CMI, a Kentucky corporation that manufactures the Intoxilyzer equipment

and owns the source code, produce the requested material. The respondent also ruled as

follows:

The Court finds that the source code for the Intoxilyzer

8000 is not within the possession or control of the Pima County

Attorney[’]s Office, any law enforcement agency, or any other

person that has participated in the investigation that is under the

direction or control of the Pima County Attorney[’]s Office, and

therefore declines 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. The Court

further finds that while a defendant is entitled to any evidence[]

“that potentially could rebut the state’s prima facie showing”

that an Intoxilyzer was operating correctly and is entitled to

attack the [I]ntoxilyzer’s reliability before a jury, such

information is not Brady material.[ ]

1

¶3 Nevertheless, at a subsequent hearing on defendants’ “Request for Remedies,”2

the respondent judge ordered the state to obtain the source code from CMI and provide it to

defendants. She also ordered the state to serve a CMI representative in Kentucky with an

order to show cause why CMI should not be held in contempt. The respondent reasoned that,

even though she had found the information was not in the possession or control of the state,

“there is an obligation on the State to disclose material that’s not in its possession under
4

Rule 15 if the State has better access” to information defendants have specifically requested

but have not obtained, despite their good-faith efforts. 

Discussion

¶4 The state has petitioned this court for special action relief, asking that we

“revers[e] the trial court’s orders that CMI disclose the Source Code to Defendants, that the

State obtain the Source Code from CMI, and that the State serve the order to show cause” on

CMI. After filing its petition, the state wrote to CMI requesting disclosure of the source code

and apparently had the respondent judge’s orders served on a representative of CMI. In

addition, the state sought enforcement of those orders in a Kentucky court. The record

reflects the Kentucky court quashed the orders, finding the Intoxilyzer 8000 source code

subject to protection as a trade secret. CMI subsequently stated it would produce the source

code provided all parties agreed to a protective order and signed a nondisclosure agreement.

¶5 The state then unsuccessfully moved the respondent judge to reconsider her

order requiring the state to obtain and produce the source code. On January 12, 2009, the

respondent concluded she lacked jurisdiction to require the out-of-state corporation to

comply with her orders and vacated her September 2008 order directing CMI to disclose the

source code. And as noted above, the state had already served CMI with the respondent’s

order to show cause. Thus, the state’s request that we vacate the respondent’s orders

requiring CMI to disclose the source code and requiring the state to serve CMI with an order

to show cause is moot. 
5

¶6 One issue remains, however: whether the respondent judge abused her

discretion in ordering the state to obtain the source code from CMI and disclose it to

defendants. We accept jurisdiction of this issue because the state has no equally plain,

speedy, or adequate remedy by appeal to challenge the respondent’s order compelling

discovery, see Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 3, 63 P.3d 282, 283 (2003),

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).

¶7 We will not disturb a trial court’s ruling on discovery and disclosure matters

absent an abuse of discretion, and we defer to the trial court’s factual findings as long as they

are supported by reasonable evidence. Twin City, 204 Ariz. 251, ¶ 10, 63 P.3d at 284-85; see

also Ariz. R. P. Spec. Actions 3.

¶8 Reasonable evidence supported the respondent judge’s findings that the state

has no independent obligation under Rule 15.1 to produce CMI’s source code for the

Intoxilyzer 8000, because, based upon the record concerning the Pima County Attorney’s

Office and the Tucson Police Department, the state has neither possession of the source code

nor control over CMI. See Ariz. R. Crim. P. 15.1(b), (f). We find no evidence, however, to

support the respondent’s finding that the state has better access than defendants to CMI’s

source code and is therefore obligated to produce it. Indeed, the state attempted to have CMI

produce the source code, which CMI refused to do without protective conditions it sought

to impose. 
6

¶9 As our supreme court has explained, “Generally, ‘[t]he [S]tate cannot be held

to disclose material that it does not possess.’” State v. Armstrong, 208 Ariz. 345, ¶ 55, 93

P.3d 1061, 1072 (2004), quoting State v. McDaniel, 136 Ariz. 188, 195, 665 P.2d 70, 77

(1983) (alterations in Armstrong). Accordingly, 

the state has an obligation under Rule 15.1 to disclose material

information not in its possession or under its control only if

(1) the state has better access to the information; (2) the defense

shows that it has made a good faith effort to obtain the

information without success; and (3) the information has been

specifically requested by the defendant. 

State v. Rienhardt, 190 Ariz. 579, 585-86, 951 P.2d 454, 460-61 (1997) (“fact that the

prosecution is in a better position to secure a witness’s cooperation” does not “mean that the

witness is under the prosecution’s control”). We therefore conclude the respondent abused

her discretion in ordering the state to obtain and disclose the CMI source code.

¶10 The state also persuasively challenges the respondent judge’s finding that

defendants have a “substantial need” for the source code to prepare their cases, see Ariz. R.

Crim. P. 15.1(g), and asks us to find that the respondent judge abused her discretion in this

regard as well. But resolution of this question is not required, based on the record before us,

to decide the issue presented in this special action. See Progressive Specialty Ins. Co. v.

Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548, 694 P.2d 835, 836 (App. 1985) (appellate court

should not give advisory opinions or decide issues other than those required to dispose of

appeal under consideration). Nor can we say this question will necessarily be relevant in

future litigation between these parties. See Velasco v. Mallory, 5 Ariz. App. 406, 410-11,

427 P.2d 540, 544-45 (1967) (court should not render “advisory opinions anticipative of
At the hearing on October 27, 2008, defendants never argued the state had “better 3

access” to CMI’s source code. Instead, counsel for defendants told the court, “I don’t think

CMI is ever going to turn over the source code. I don’t think they will ever do it irrespective

of whether the State is ordered to serve something on them . . . or otherwise.” 

7

troubles which do not exist; may never exist; and the precise form of which, should they ever

arise, [the court] cannot predict”); see also Allen v. Graham, 8 Ariz. App. 336, 338, 446 P.2d

240, 242 (1968) (“Appellate review is circumscribed by the posture of the case in the lower

court.”). We therefore decline to address whether the respondent judge abused her discretion

and clearly erred in finding defendants had met their burden of establishing a substantial need

for the discovery they sought.

Disposition 

¶11 The respondent judge erred as a matter of law and abused her discretion in

ordering the state to produce source code material for the Intoxilyzer 8000 that it did not

possess and had been unable to obtain, without any evidence the state had “better access”

than defendants to what CMI maintains are trade secrets. Accordingly, we vacate the 3

respondent’s order of October 27, 2008, “that the state obtain the source code for the

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

 

PHILIP G. ESPINOSA, Judge

CONCURRING:

 

JOSEPH W. HOWARD, Presiding Judge

 

JOHN PELANDER, Chief Judge