Many police agencies in the greater
Phoenix area are utilizing devices commonly known as "Preliminary Breath Tests" or "PBT's" in connection with their DUI investigations. As explained below, most Phoenix criminal defense attorneys and Scottsdale DUI attorneys agree that it is usually a bad idea to take a PBT.
As a preliminary matter, it is important to understand the difference between these PBT's and the breath tests that are administered using a much more complex machine known as the Intoxilyzer. The PBT is a small handheld unit that police officers commonly keep with them in their patrol vehicles. The PBT units are approximately the size of a standard VHS video tape and usually have a short disposable mouth piece affixed which is white in color. As the name implies, these machines are typically used during the early roadside stages of a DUI investigation, before the motorist is placed under arrest. The equipment used by most police agencies to administer a PBT is not approved by the Arizona Department of Public Safety for use as an "evidentiary test" and the results of the PBT are therefore inadmissible in court and cannot be used as evidence during a DUI trial.
Conversely, Intoxilyzer breath tests are customarily given after the motorist is placed under arrest for DUI. Although the accuracy of the Intoxilyzer can be effectively challenged in court by a skilled DUI practitioner, it is generally considered more accurate than its smaller and portable counterpart, the PBT. If the officer who administers the test is certified and the test is administered properly, the Intoxilyzer results are generally admissible in court. The Intoxilyzer can easily be distinguished from the PBT because the equipment itself is much larger, has a long tube connecting the machine to the mouthpiece and is typically administered after the individual is arrested and advised that his drivers license will be suspended for a year if he does not agree to test. Whether an individual should submit to the Intoxilyzer test or refuse depends on a number of factors. It is therefore advisable to politely request an opportunity to consult with an attorney before deciding whether to take the test. Because the police will usually seek a search warrant and obtain a blood sample if the Intoxilyzer is refused, agreeing to take the breath test is oftentimes, but not always, advisable.
Agreeing to blow into a PBT, on the other hand, is usually not recommended for the following reasons:
1. The police can impound your vehicle for 30 days based on the PBT results.
law, the police can impound your vehicle and keep it for 30 days if you are arrested for the offense of Extreme DUI. The police cannot make an Extreme DUI arrest unless they have probable cause to believe that the driver's blood alcohol concentration is at least .150%. Many jurisdictions, including Scottsdale and
, use blood testing in lieu of the Intoxilyzer after they make a DUI arrest. Because the results of a blood test are not known until long after the individual is arrested, the PBT represents the only opportunity these agencies have to obtain evidence of your blood alcohol concentration while they can still take your car. Even though PBT results cannot be used as evidence during a DUI trial, they can nevertheless be used by the police to make an Extreme DUI arrest and justify impounding the driver's vehicle.
2. PBT results can be used by the police to make an arrest and obtain additional evidence.
The police cannot place somebody under arrest without a warrant unless they have probable cause to believe they committed a crime. DUI is no exception to this well established rule of law. As set forth above, police officers typically cannot conduct an evidentiary value blood alcohol concentration test (via blood or breath testing) until after the driver has been arrested. If the driver was operating the vehicle properly, refuses to submit or performs well during field sobriety tests, or the officer involved otherwise lacks enough evidence for his probable cause, the driver might avoid arrest or have any evidence that was obtained subsequent to an unlawful arrest suppressed by the court. However, if that same driver submits to a PBT, the results might provide a legal justification for the officer to make a DUI arrest and continue with his investigation.
3. Preliminary breath testing increases the length of contact with the police.
Police officers are not limited to using the results of field sobriety tests and PBT's when forming their probable cause to make a DUI arrest. In addition to the results of these "tests", officers can also rely on general observations they make regarding the odor, appearance, demeanor, balance and coordination of an individual. Keep in mind that the PBT is held in the officer's hand while the subject provides his or her breath sample. At an arm's length, the officer will be provided the opportunity to make detailed observations regarding these characteristics. If the police officer observes anything that is consistent with alcohol impairment during this contact, those observations will be used to both justify an arrest and as evidence during a subsequent trial.
4. PBT's are neither accurate nor reliable.
Preliminary breath testing results are not admissible in court for good reason - the equipment used and the manner in which they are obtained is not scientifically sound. The author personally represented a client who was charged with Extreme DUI and had his vehicle impounded based on a PBT result of nearly .400%. When his blood was subsequently tested by the police crime lab, they determined that the blood alcohol concentration was only .140% (under the Extreme DUI cut-off). In other instances, officers may use a slightly elevated PBT result to charge someone with DUI and the case will later be dismissed or reduced when the blood testing results demonstrate that the driver was actually well under the limit. Although individuals in those circumstance may ultimately avoid a DUI conviction and the penalties associated with it, the embarrassment, stigma and humiliation that comes along with being arrested is seldom forgotten.
5. Unlike the Intoxilizer, PBT equipment does not generate a hard copy of the test results.
Both the Intoxilyzer 8000 and its predecessor, the Intoxilyzer 5000, produce a "Test Record Card" when a breath test is conducted. This document contains the times and results of each test. Although the accuracy and reliability of these tests are often the subject of much criticism, these documents provide a clear record of the results obtained by the officer who administered the test. Instead of generating a written test record card, PBT's simply display the test results in a small LED window for a brief period of time after the test is completed. The lack of a tangible record from the PBT means that only the officer who administered the test will ever know what exactly what the results were. Whether it be because of an honest mistake or, less frequently, an unscrupulous officer, the PBT result could magically increase before it is documented in the officer's report. Without a paper trail to corroborate the results observed by the officer, a DUI suspect might never know that his or her PBT results were not accurately reported.
Police officers will rarely, if ever, tell you that submitting to a preliminary breath test is voluntary. Regardless of whether the officer suggests that you "will be in more trouble" if you don't agree to the test or asks you to blow "just to make sure you're okay to drive," it is important to understand that you have the absolute right to refuse. Before agreeing to a PBT, an informed
motorist will keep these rights in mind together with the considerations listed above.