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Breath Tests in DUI Cases in Las Vegas, Nevada – DUI Lawyer Ross Goodman


Breath Tests and DUI

Most people should choose the Breathalyzer over a blood test because there are more ways to challenge the Intoxilyzer 8000. Nevada’s implied consent statute, NRS 484C.160(1) provides that through the act of driving a vehicle, the person “shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath” if there is reasonable grounds to believe that the person was driving while intoxicated.

Generally, you may refuse to submit to a blood test under NRS 484C.160(4)(a) if means are reasonably available to perform a breath test. There are certain stituations where you do not have the choice of a Breathalyzer such as where it is the second DUI charge, drugs are suspected or an accident occured.

An arrest for driving under the influence by an arresting officer will usually require that you submit to a DUI breath test on an Intoxilyzer 8000EN machine that can be found at the Clark County Detention Center, City of Las Vegas Detention Center, Henderson Detention Center or any other jail facility. However, the simple fact is, breathalyzers are likely to give incorrect results.

What are breathalyzers?

Breathalyzers such as the Intoxilyzer 8000EN are machines that collect breath to measure the alcohol concentration in a person’s body. A blood alcohol content (BAC) of 0.8 will lead to a positive result. While painless and non-invasive like blood tests, the results may not always be accurate when a person blows into the machine regardless if the machine is actually working properly.

It is important to contact an experienced Las Vegas DUI Breath Test Attorney if you had to blow into the Intoxilyzer 8000EN and received a positive test result. Several factors including the calibration of the machine and medical conditions can cause the machine to return an inaccurate reading.

It is important to contest the accuracy of such machine and breath tests by showing a number of inconsistencies in the inspection and calibration of the actual machine that may have caused a huge margin of error. Below are the possible charges, consequences, and penalties if you refuse the breath test.

Types of Breath Tests

There are two separate breath tests that law enforcers will require those suspected of DWI to take, the Preliminary Breath Test (PBT) and the Evidentiary Breath Test (EBT).

Preliminary breath test

Performed by a police officer upon first pulling you over to determine whether you are driving under the influence. Typically, they will also ask to perform field sobriety tests along with asking you some questions. Refusing a PBT means the officer will arrest you for driving under the influence and suspend your license. If your case goes to trial, the results of the PBT will be used as evidence to show there were reasonable grounds to arrest you but not as evidence for DWI.

Evidentiary breath test

This test occurs in the police station, after you’ve already been arrested. Results of this test can be used in court to show that you were driving under the influence.

Intoxilyzer 8000EN and the Common Challenges it Raises in Court

In pre-trial motion hearings, the common goal is to request that the judge remove any mention of the breath test reading while in trial. Challenges in this regard include:

  • Is the Intoxilyzer 8000EN properly calibrated, inspected and maintained in strict compliance with Administrative Rules enacted by Nevada’s alcohol testing program;
  • Was the Intoxilyzer in proper working order or whether glitches were determined in tests taken prior to or after the breath test result in question;
  • Whether the breath test technician was qualified by meeting all training and certification requirements;
  • Whether the breath test in question was properly administered to the subject;
  • Whether the breath test result on the Nevada Intoxilyzer 8000 was within a margin of error of 0.010 which would call into question the finding that the reading was over Nevada’s legal limit of 0.08%;
  • Whether the slope detector was acting properly;
  • Whether the instrument needed repairs or was recently repaired;
  • Whether any fail safe flags indicated “INTERFERENT DETECTED” which might indicate the presence of isopropanol or methanol;
  • Whether any fail safe flag indicated “INTERNAL FAILED” which would indicate that the internal standards measured outside of a 5% tolerance range;
  • Whether the flow sensor properly measures a breath sample of at least 1.1 liters of breath;
  • Whether the subject blew for at least one second;
  • Whether the alcohol concentration slope began to level off;
  • Whether the pressure reached an acceptable range of approximately 1″ of water;
  • Whether the temperature monitoring system on the Intoxilyzer 8000EN was working properly showing that the simulator’s temperature was 34 degrees C (plus or minus 0.5).

Breath Tests and DUI Defense Lawyer

If you are arrested and have submitted to a breath alcohol test, contact a Las Vegas DUI Attorney to discuss possible defenses. Even if the machine turns out to be positive, this does not mean that you can be convicted for DWI. We can show you how you can fight your DUI conviction.

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