Friday, November 18, 2005

No opinions from the Nebraska Supreme Court today. Follow up: Douglas County Court Judge Swartz rejects discovery requests for computer operating codes for DWI testing equipment, avoiding "chaos" in the County Courts; no doubt this is the kind of case the Supremes like to get for the limelight. Omaha.comProsecutors can breathe easier: A Douglas County judge refused Thursday to throw out the breath tests against three drunken-driving suspects, ruling that prosecutors don't have to turn over the computer codes that make the breath-test devices tick. Judge Stephen Swartz's decision preserves the breath tests and the drunken-driving cases against the three men. More important, City Prosecutor Marty Conboy said, it reinforces police officers' use of the devices in arresting people they suspect of driving drunk. "It means business as usual," Conboy said. A decision to toss the breath-test results could have thrown the courts into chaos - and hundreds of drunken-driving cases into a year or more of legal limbo. Prosecutors rely on the breath tests as their primary evidence against 5,000 drunken drivers a year in Douglas County and about 14,000 in the state. The tests came into question last month when Omaha defense attorney Steve Lefler, following a Florida trend, requested access to the breath-test device's source codes, saying he needed them to ensure the machines' accuracy. A few judges in Florida have thrown out hundreds of breath tests after prosecutors there refused to turn over the source codes. Judge Swartz agreed, ruling that, under state and federal law, he couldn't order prosecutors to turn over information they don't have. a training specialist with the Department of Motor Vehicles, noted that there never has been any evidence - studies, reviews, trends - to suggest that the machines are skewing results. In fact, Koperski said, it's quite the opposite: Agencies test the machines either weekly or monthly and are required to record the results. If the machine is slightly off, it is taken out of service and repaired. Further, the state tests the machines every six months by sending agencies a solution with an alcoholic content known only by the state. If the machine misses that mark, it must be repaired.

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