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May 30, 2015

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Questions surround decision not to charge constable in DUI case

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John Bonaventura, Las Vegas Township constable

Steve Wolfson

Steve Wolfson

Clark County District Attorney Steve Wolfson’s announcement last week that Las Vegas Township Constable John Bonaventura would not face charges for driving under the influence after his Feb. 12 arrest provided a small bit of vindication for the embattled constable, who had maintained all along he was under the legal limit when arrested.

But details in Wolfson’s statement and an arrest report raise questions about what happened the night a Nevada Highway Patrol officer pulled over Bonaventura in an official vehicle in a Walmart shopping center near Tropicana Avenue and McLeod Drive.

One point of confusion is a second constable’s vehicle that also may have been involved in the incident.

“Further investigation also showed that a different Constable’s Office vehicle may have been speeding, instead of the vehicle Mr. Bonaventura was driving at the time of his arrest,” Wolfson said in Friday’s statement.

Nevada Highway Patrol spokesman Loy Hixson said he was unaware of any other constable’s vehicles in the vicinity of Bonaventura’s arrest.

“I did see the statement from the DA’s office, but I’m not familiar with that,” Hixson said Monday. “It wasn’t mentioned in the report.”

Hixson said regardless of whether a second vehicle was involved, a Nevada Highway Patrol trooper witnessed the vehicle driven by Bonaventura speeding, giving her probable cause to pull over Bonaventura.

In initial reports after the arrest, Hixson said Bonaventura was “completely compliant” when stopped by the trooper, but the arrest report paints a different picture.

After the trooper initiated the stop and turned on her emergency lights, Bonaventura did not immediately pull over and responded by turning on the emergency lights in his own vehicle, the arrest report said.

When he got out of his vehicle, Bonaventura continued to refuse to follow the trooper’s instructions, the report said, prompting the trooper at one point to draw her Taser on the constable.

The trooper reported being fearful for her safety and that she felt “Bonaventura was trying to intimidate me with his status as an officer,” the report said.

Hixson said Bonaventura was considered compliant because he did not attempt to flee and no physical force was needed when making the arrest.

After being pulled over, Bonaventura was administered several field sobriety tests and a preliminary breath test.

According to the report, Bonaventura failed two of the three field sobriety tests and blew 0.099 on the breath test, over the legal limit.

However, preliminary breath tests are not admissible evidence in court under Nevada law, and Bonaventura was given two follow-up breath tests at the Clark County Detention Center, both of which showed his blood-alcohol content under the legal limit of 0.08.

Las Vegas attorney Mario Fenu, who handles drunken-driving cases, said the Breathalyzer used to conduct field breath tests could be inaccurate and prone to false positives due to poor calibration, improper use or manipulation by the officer administering the test.

“Forget science and just know that Nevada Revised Statute prohibits the use of the field sobriety Breathalyzer as evidence. It’s inadmissible,” Fenu said. “It can form the basis of probable cause in the field so that the officer can make a determination whether to arrest or not.”

The Breathalyzer device used at the Clark County Detention Center is more accurate and can be used as evidence in court, so long as the breath test is conducted within two hours of the initial arrest, Fenu said. Bonaventura’s follow-up breath tests were both administered about 1 hour and 45 minutes after his arrest.

A blood-alcohol content greater than 0.08 is not required to charge someone with driving under the influence, Fenu said. In those situations, a driver still can be prosecuted for driving impaired using testimony from the arresting officer along with the breath tests.

Was the constable given preferential treatment? Fenu hedged.

“This is when it comes down to officer discretion and prosecutorial discretion,” Fenu said. “I wish I could tell you there was a rhyme or a reason. I see cases that should never be filed but they file on them. Just because you were pulled over and arrested for DUI doesn’t mean you were driving under the influence.”

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