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Legal technicality puts Mo. DUI breathalyzer results under the microscope

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KANSAS CITY, Mo. -- People who got a DUI anywhere in the state of Missouri from November 2012 to January of 2014 might be off the hook depending on who's interpreting the law.

"I cannot use high heels anymore, I cannot bend, I cannot pick up my grandchildren," said Minerva Nievas.

Nievas was headed to a fast food restaurant in the summer of 2011 at 11 a.m., when a drunk driver hit her head on.

"I've been in pain every single day," she added, "For the rest of my life I will be in pain."

An MRI showed Nieves she had broken almost every bone in her back. The woman who hit her was drunk and on drugs.

Now, some defense attorneys have successfully challenged blood alcohol test results, and that has her concerned. They say won word in the law is at the center of their claims.

"It could invalidate the use of the breath sample that they gave," said attorney Christopher Yotz, who specializes in DUI cases.

He said before November of 2012, the word in the regulations was "or". The State Department of Health Requires the machines testing BAC levels to be periodically tested at one of three levels: .10, .08, and .04 percent.

From November 2012 to January 29th of this year, defense attorneys realized the word was changed to "and," meaning police had to conduct tests at each one of those three levels, not just one.

"Now that doesn't necessarily throw out all of those DWI cases, that's just one part of the evidence," added Yotz.

But he says the change of one word could invalidate many cases.

"If they don't have a test, then the prosecutor still has to prove the person was intoxicated at the time they were driving the vehicle," he added.

"Those people, because of that three word letter, they can kill somebody okay, maybe a mother, a kid, and they get away with that," said Nieves, "They broke the law, they drink and drive, they're not supposed to do that, period."

The word "and" has since been changed back to "or". But defense attorneys have won cases because of this loophole if the DUI occurred before it was fixed.

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