Original Article Posted on Tue, Nov. 15, 2005 Defense lawyers to challenge breath tests in drunk-driving cases Associated Press OMAHA, Neb. - Some Nebraska defense attorneys are taking a cue from their counterparts in Florida who have gotten hundreds of drunken-driving cases dropped by demanding the manufacturers of breath tests show how the machines work. If the information is not provided, defense attorneys ask judges to disallow the test results as evidence in drunken-driving cases. Attorneys in Seminole County, Fla., have used the tactic to get hundreds of cases dropped in the last year. "This machine has been treated as if it's the machine behind the Wizard of Oz's curtains," said Omaha defense attorney Steve Lefler. "We ought to be able to ensure that it's accurate." On Thursday, Lefler will ask a Douglas County judge to throw out breath-test results in two cases. Omaha City Prosecutor Marty Conboy said the test's accuracy is tested and ensured by the Nebraska Health and Human Services, which licenses the machines. Conboy has been a part of thousands of drunken-driving prosecutions that involved the use of breath tests. He said he has no doubts about their accuracy. "I have confidence that in every single one of those cases, the person was guilty," he said. The breath tests are like computers, Lefler said, in that they are bound to have glitches. Two Douglas County judges have asked prosecutors to provide the operation information, including the computer code that makes them work, or explain why they can't. Prosecutors say they don't have the information because it is owned by the machines' manufacturers. Asking for the tests to be scrutinized in such a manner is imprudent and impractical, Conboy said. "You get a judge to make this kind of a decision, it's like lighting gasoline on fire," he said. The stakes are high and people on both sides believe the case will eventually go to the state Supreme Court. In 2004, about 14,000 Nebraska drivers - including about 5,000 in Douglas County - were arrested for drunken driving, with breath tests being used in a majority of the cases. Defense attorneys James Schaefer and Glenn Shapiro plan to ask for test operation information in 30 upcoming cases. "If those machines have real problems and (the maker) has been hiding it from us," Shapiro said, "then it's our duty to blow the whistle on this." Information from: Omaha World-Herald, http://www.omaha.com