Nebraska law prohibits operating a motor vehicle with a blood alcohol concentration above 0.08 percent. When a motorist is arrested on suspicion of driving under the influence (DUI) he/she is usually asked to perform a chemical breath test upon arrival at the jail. Critics and defense attorneys have long questioned the reliability of breath test results – and with good reason, as shown by questions about the certification process for Nebraska’s breath test machines. Nebraska DUI defense attorney Tom Petersen explains why defense attorneys are challenging breath test machine results in Nebraska.
Nebraska’s Implied Consent Law
When you are arrested for driving under the influence, Nebraska implied consent law says that you have already agreed to submit to a chemical test of your blood, breath, or urine. Despite this, you do have the legal right to refuse a chemical test; however, there are some fairly stiff penalties for refusing, including the loss of your driving privileges. The preferred test is a breath test because it is the least invasive, is relatively inexpensive, and provides immediate results.
The Breath Test
The word “breathalyzer” is typically used when referring to a breath test; however, the word “breathalyzer” is actually a trade name for a specific type of breath testing device. In addition, a breath test machine does not actually measure the amount of alcohol in your body. Instead, it provides an estimate based on the amount of alcohol found in the breath you expel when you blow into the machine. The results are then recorded as a percentage of breath alcohol content, or BAC. If the results show a BAC level of 0.08 percent or higher, that result will become evidence against you at trial. In a perfect, controlled environment, a breath test machine can produce very accurate results; however, in reality, there are a number of factors that can impact the results, including how well the machine itself has been maintained and whether it is correctly calibrated.
The Certification Controversy
Law enforcement agencies are supposed to regularly calibrate and certify the accuracy of Breathalyzer machines. To do so, they put a “known solution” into the machine to verify that it’s working properly. The issue with the Nebraska machines is that a manager has been signing the certification of validity instead of the person who actually tested it, raising legal issues as to the validity of the test results.
The “work-around” many counties have come up with is to push for blood tests instead of breath tests when someone is arrested for DUI. “Most law enforcement agencies are doing blood draws for DUIs instead of just the (Breathalyzers),” said Bonnie Moore, the Sarpy County attorney’s chief deputy. “At this point, it gets hard to predict the consequences of what will happen, and we’re trying to work it out.” Blood draws, however, are more invasive and costly – and they require a search warrant if the suspect does not consent.
How Many DUI Cases Are Potentially Impacted?
While law enforcement agencies and prosecutors scramble to fix the problem, defense attorneys are worried about the cases that might already be impacted by questionable test results. In Lancaster County alone, officials say about 200 cases are potentially in question because of the certification issue, according to the Associated Press.
Defense attorney Thomas Peterson of Omaha, who specializes in DUI cases, said the situation is a concern across Nebraska. Last spring, Petersen said “It affects anyone who uses a (Breathalyzer) to test breath. I have 17 cases on my desk that all have certificates of analysis that have the same problem in Douglas County as they do in Lancaster County.” If you are concerned about your breath test results from a recent DUI arrest, it is imperative that you consult with an experienced Nebraska DUI defense attorney right away.
Contact Nebraska DUI Lawyers at Petersen Law Office
If you have been arrested for driving under the influence in Nebraska, it is always in your best interest to consult directly with a DUI defense attorney about the specific facts and circumstances of your case. Contact the Nebraska DUI lawyers at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced DUI defense lawyer.