Law enforcement asks for breathalyzer clarification

Kiley Russell

Thursday, April 29, 1999 | 9:05 a.m.

CARSON CITY - Washoe and Clark County crime lab officials asked lawmakers Wednesday to clear up a law that allows both breathalyzer tests and the drawing of blood in drunk driving cases.

Suzanne Harmon of Washoe County and Tracy Burch of Clark County told legislators SB152 would ensure that prosecutors, judges and defense attorneys realize breath tests for alcohol are admissible in DUI cases.

"The term '0.10 in his blood' is used in the statute, but it means breath and blood," Birch told the Assembly Judiciary Committee.

She added the bill would amend the law to read "it is unlawful for any person who ... has a concentration of alcohol of 0.10 or more in his blood or breath" to drive.

The bill was inspired by a DUI case against Las Vegas resident Ronald Morwick, whose attorney argued that the law only applied to blood tests and not to breathalyzers. He won at the lower court level but lost when the case went to the Nevada Supreme Court.

"We've had numerous cases, but that's the case that made it to the Supreme Court," Burch said.

Lawmakers seemed irritated that the 1989 law to allow breath tests in court has been the source of such consternation.

Judiciary Chairman Bernie Anderson, D-Sparks, said the bill seems clear enough to him because the section that allows breathalyzers is in the very front of the law.

"This is because of the fact that people aren't bothering to go to the front of the chapter and read the definition, because judges aren't reading the law?" he asked.

But the bill's opponents say that it's not a simple clarification of existing law and could be used to convict innocent people of drunken driving.

"This is a major, substantive change where we'd no longer be concerned with how much alcohol is in the blood," said John Watkins, a Las Vegas defense attorney who represented Morwick.

"They want a person to be convicted by what's in the breath alone," he added.

Watkins said that breath tests shouldn't be allowed to convict people of drunken driving because they aren't infallible and can, for example, pick up steak stuck in a person's teeth and read it as alcohol.

"It's not uncommon to have a breath sample and a blood sample taken at the same time to disagree up to 0.04 or more," Watkins said.

But Burch disagreed, saying police are trained to give more than one test over a period of time to weed out false results.