Breath Evidence

Breath Evidence2023-08-28T18:06:17+00:00

Much like blood alcohol analysis, breath alcohol analysis is not infallible. The devices that Nevada law enforcement use to analyze breath samples are simply machines. They are therefore subject to malfunction, operator error and performance problems just like any other machine.

Generally speaking, Nevada law enforcement uses CMI Intoxilyzer 5000EN breath testing machines. These models are used at the Clark County Detention Center, Las Vegas Detention Center and Henderson Detention Center. There are still a few Intoxilyzer 5000 models, the 5000EN’s predecessor, in operation but these older models are less common and are only being used in some of the DUI Vans and at some of the outlying jurisdiction detention centers. Significantly, the 5000 has been in use since 1982 and even the 5000EN is now an outdated machine. CMI released the 8000 model in approximately 2000 and has since even released the 9000 model (as well as the 9400). CMI boasts that the 9000 is “the newest in CMI’s Intoxilyzer® line of products.”[1]

Are you wondering why Nevada is using outdated technology to send its citizens to jail? It gets worse.

In addition to the fact that your blood alcohol content[2] was measured by a machine using decades-old technology, even if the outdated machine that analyzed your breath sample was operating properly, the machine is still prone to error. Problems such as component malfunction, radio frequency interference, calibration problems, ambient air contamination and operator error are just a few problems that plague the 5000 and 5000EN models.

Even worse, the 5000 and 5000EN models are susceptible to producing false positives and/or inflated readings where the following conditions are present/exist: “mouth alcohol” (mouth alcohol can be caused by a number of factors), failure to adhere to the “observation/deprivation period,” acid reflux disease (Gastro Esophageal Reflux Disease or GERD), asthma, vomiting, burping, ketosis (being on the Atkins Diet), partition ratio issues, gingivitis and even drinking Dr. Pepper. Having an air bag deployed in your face before a test or even suffering from a fever at the time of the test will also render your reported BAC unreliable.

Both the 5000 and 5000EN models use electromagnetic radiation and infrared spectrometry to detect and quantify alcohol. If you were subjected to an evidentiary breath test, it is important that you hire an attorney that is educated and trained on the principles of electromagnetic radiation and infrared spectrometry. Mr. Hayes has been educated and trained on the theory and operation of the Intoxilyzer models, both preliminary (“roadside”) test models (S-D2 and 400) as well as evidentiary test models (5000, 5000EN and even the 8000). If you would like the breath evidence in your case thoroughly reviewed, contact the DUI Lawyers of Las Vegas to schedule a free and confidential consultation.

[1], accessed January 18, 2014.

[2] Breath alcohol analysis subpage