KLAS-TV Channel 8 News Las VegasDUI Lawyers Gear Up to Challenge Breath Test
When you are pulled over for drinking and driving, police test the alcohol content in your lungs with a breathalyzer. Will that test hold up in court? A recent case was thrown out in Florida on claims the machine's workings couldn't be validated, therefore its findings couldn't be held up in court. Eyewitness News wanted to know if they same case could be made here.
Dana Russell is a chemistry criminalist with Metro Police. She said, "The breath alcohol device that we use is the Intoxilyzer 5000." Russell works with the breath test machines everyday. She added, "It is very accurate in measuring breath alcohol."
However, that argument has recently been put to the test. Mace Yampolsky is a criminal defense attorney. He said, "The defense attorneys in Florida wanted to see how the machine was working. They wanted the 'quote on quote' source codes. CMI didn't give them up."
The case was thrown out of court, which sparked Yampolsky's attention. He said, "They say it is a trade secret, however, since I am a suspicious defense attorney I think they didn't want the machine tested."
Russell countered, "When a breath card is completed and printed in my testimony it's a valid breath test. These have worked." Russell keeps a constant eye on the machines. She added, "I have to ensure the devices are measuring levels accurately within plus or minus 10-percent or I am pulling the machines and making repairs."
Clark County Deputy District Attorney Bruce Nelson says such an argument wouldn't survive here. "They can still argue it didn't work right on a particular day but they can't attack the machine itself."
Yampolsky stated, "Machines are not infallible." Nelson says it doesn't concern him because the state has already approved the machine. He said, "I don't think its anything. It's a mountain out of a molehill. It won't fly in Nevada."
CMI did not return our phone calls. There are 25 Intoxilyxzer machines currently being used in Southern Nevada.
Email reporter Lindsay Patteson at lpaterson@klastv.com
