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Breath Test DUI Attorney in Las Vegas, NV

If you submitted to a breath test after a DUI arrest in Las Vegas, Nevada, or in any of the surrounding areas in Clark County, then contact an experienced DUI defense attorney at Gallo Law Office. Local law enforcement officers (including the Las Vegas Metropolitan Police and the Nevada Highway Patrol) use a breath test instrument called the Intoxilyzer which is manufactured by CMI, Inc.

Attorney James C. Gallo is experienced in fighting to have the breath test results excluded for a variety of reasons including the failure to comply with statutory and administrative rules for administering the tests and maintaining the breath test instruments.

Under Nevada law, the law presumes that if your breath or blood alcohol content (BAC) was at .08 or above then you were driving under the influence of alcohol under a “per se” theory. This means that even if there is no evidence that you were actually impaired, the jury can consider the test result by itself as evidence that you were DUI. Alternatively, even in the absence of a chemical test, the prosecutor can attempt to show actual impairment.

Call (702) 385-3131 today to discuss the facts of your DUI breath test case. For DUI breath test cases in the City of Las Vegas, the City of North Las Vegas, the City of Henderson or the Clark County Township, call James C. Gallo to find out how he can help you fight the charges. Call (702) 385-3131.

Nevada's Implied Consent Statute

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."

NRS 484C.160(4)(a) states that if an evidentiary test is to be conducted “the person may refuse to submit to a blood test if means are reasonably available to perform a breath test.”

Nevada's Illegal Per Se DUI Law

If a breath or blood alcohol test shows an alcohol concentration of .08 percent or above, then Nevada's DUI laws permit the state to revoke the driver's license, and impose a jail sentence or assess a fine. The statutory scheme provides for increased minimum mandatory penalties with each subsequent conviction.

Even if the alcohol concentration was less than .08, the person can still theoretically be charged with DUI if sufficient evidence proves that the person was under the influence of alcohol or controlled substances. The per se DUI law also applies to certain concentrations of a prohibited substance such as marijuana. See NRS 484C.110.

Commercial Vehicle DUI in Nevada

NRS 484C.120 address a DUI charge committed by a driver of a commercial vehicle. The main different between a commercial vehicle DUI and a regular DUI is that the "per se" violation for a commercial vehicle is .04 and not .08. Therefore, under this statute, it is against the law for a driver of a commercial vehicle to have a blood or breath alcohol concentration of 0.04 or higher at the time of driving or within two hours of driving.

The Preliminary Breath Test (PBT) in Las Vegas DUI Cases

In many DUI cases in Las Vegas, Nevada, the driver will be asked to submit to a preliminary breath test (PBT) at the roadside when the DUI investigation begins. Many officers rely heavily on these results even when it is contradicted by other evidence gathered during the investigation.

In many cases involving a PBT reading over .08, your attorney will move to exclude any evidence about the PBT test entirely. The prosecutor will often seek to use this evidence to show that the officer had “reasonable grounds” to arrest you. The PBT test cannot be used to show that you are driving under the influence under NRS 484C.150, although this distinction is often lost on the jury.

When you are first pulled over on suspicion of DUI in Las Vegas, the police will probably ask you to answer some questions, to perform field sobriety tests and to submit to a preliminary breath test (PBT). This is also called a roadside breath test or preliminary alcohol screening (PAS), and it is meant to give the police officer an initial idea of whether you are under the influence or not.

If you refuse to submit to a PBT in Las Vegas, the police will suspend your license and arrest you for DUI. If your case goes to trial, the PBT results may come in as evidence to show the police had "reasonable grounds" to arrest you. But it cannot be used to show that you were driving under the influence. (NRS 484C.150).

NRS 484C.150 is titled “Implied consent to preliminary test of person’s breath; effect of failure to submit to test; use of results of test.” This statute provides that a person has implicitly consented to a preliminary test of breath to determine his BAC if the officer has legal grounds for the request.

Preliminary breath testing devices (PBTs) are typically hand-held, battery operated devices. The PBTs are meant to be used in conjunction with the standardized field sobriety tests during the roadside DUI investigation. Nevada uses many different types PBT machines. Each PBT must be calibrated and used in accordance with the Nevada Revised Statute and Nevada Administrative Code.

In January of 2015 the Nevada Department of Public Safety, Office of Traffic Safety awarded the Las Vegas Metropolitan Police Department $4,997 in federal grant funds to purchase 13 Lifeloc Portable Breath Testers (PBT) and related equipment. On February 23, 2015 the Fiscal Affairs Committee approved receipt of this funding.

Officers from the Las Vegas Metropolitan Police Department utilize PBTs during investigations involving people suspected of driving under the influence of alcohol. In addition to the use of the PBT in the course of an officer’s regular duties, the PBTs are also used at DUI checkpoints. The PBTs are also utilized as an education tool to describe the methods used by officers to investigate a person suspected of driving under the influence of alcohol.

Refusal to Submit to the PBT Breath Test

If the request for the PBT test is deemed legal under Nevada law and the driver refuses to submit to the PBT test, then the officer shall seize the driver license or permit of the person as provided in NRS 484C.220 and arrest the person and take him or her to a convenient place for the administration of a reasonably available evidentiary test under NRS 484C.160. Click here for more information on fighting the DMV administrative suspension.

Nevada’s Intoxilyzer 5000EN

in most breath test cases in Las Vegas and Clark County, Nevada, the case involves a reading on a machine called the Intoxilyzer 5000EN. This machine is manufactured or assembled by a company called CMI, Inc, in Owensboro, Kentucky. This company also manufacturers several other machines used in other areas including the Intoxilyzer 8000 and the Intoxilyzer 9000.

Law enforcement agencies, prosecutors and the courts generally consider the breath test results to be accurate. However, in many cases, problems occur. These problems include glitches in the software, error messages from the machine, problems with maintaining the machine, calibration mistakes, the failure to follow statutory and administrative rules. Error messages can include RFI, slope not met showing mouth alcohol, interferent detect, or volume not met.  

The law in Nevada provides for several rules regarding how the breath test is to be administered and how the machine is to be maintained. For instance, the following problems can occur:

    •    The police officer must be properly certified and trained to administer the breathalyzer test.
    •    The breathalyzer machine needs to have been properly maintained and calibrated in compliance with various statutory and administrative requirements.
    •    The breath test must be administered two times in a row within a certain period of time.
    •    The two BAC readings must be within .02 agreement of each other;
    •    The DUI enforcement officer must observe you for at least 15 minutes prior to the test to ensure that you did not put anything in your mouth or regurgitate during that 15 minute observation period.
    •    The breath test must be taken within 2 hours of the time of driving. The two-hour rules for evidentiary testing in DUI cases was enacted because the effectiveness and reliability of the tests decline over time. See NRS 484C.110; see also State, Dep't of Mtr. Vehicles v. Brough, 106 Nev. 492, 496, 796 P.2d 1089, 1092 (1990); Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 182, 772 P.2d 1278, 1280 (1989).

Defenses to DUI Breath Test Cases in Las Vegas, Nevada

At Gallo Law Office we look carefully at the breath test results to see if there is any basis to suppress or exclude the results at trial. Problems with the breath test machine used in Nevada often revolve around physiological, environmental, or procedural problems.

The most common physiological defenses that can impact DUI breath testing in Las Vegas, Nevada, can include:

  • A low carb diet caused your body to produce isopropyl alcohol causing an artificially high BAC level. 
  • A showing that the machine mistakenly found mouth alcohol and used it to calculate the amount of alcohol in the deep lungs. Even a small amount of mouth alcohol can cause a false high reading on the breath test machine.
  • Dental work, dentures, and braces can sometimes trap tiny amounts of mouth alcohol in the mouth that lead to a falsely high reading when the machine misinterprets that mouth alcohol as alcohol from the deep lung air.
  • GERD or acid reflux caused mouth alcohol that led to a falsely high reading;
  • Your breath alcohol concentration was rising at the time of testing which causes the reading to be exaggerated or higher.

Nevada law proves for many procedural requirements related to the machines calibration and maintenance. Additionally, any repairs must be authorized and conducted in accordance with administrative rules. The breath test operator must be properly trained and certified. And all rules for conducting the test must be followed.

Perhaps the most elusive are the environmental factors that can cause problems with the machine. These problems can include radio frequency interference (RFI) or problems with the ambient air.

Finding a DUI Breath Test Attorney in Las Vegas, Nevada

If you were arrested for a DUI involving either a preliminary breath test (PBT) reading or a reading on the Intoxilyzer 5000EN in Las Vegas, Clark County, Nevada, then call an experienced DUI defense attorney. James C. Gallo represents clients on DUI cases involving a refusal to submit to testing or a breath test reading over .08 after an arrest in the City of Las Vegas, the City of North Las Vegas, the City of Henderson or the Clark County Township.

Call to find out how Las Vegas DUI Attorney James C Gallo fights these complicated cases to help his clients obtain the best results.

Article last updated on Friday, June 19, 2015.