PBTs have limited use in DUIs
“PBTs” or “Portable Breath Testing” device, as the name implies is portable. It’s roughly the size of a paperback book and it’s got a breath receptacle to blow into. In Arizona, they can be used basically for two things.
A person takes the test by blowing into the device for approximately four seconds, and eventually it would register a result a result. Depending on the officer, some officers always tell the person what the result is. Some officers never tell the person what the result is.
PBTs are Approved for Use in DUI Investigations
PBTs have been approved for use by the National Highway Traffic Safety Administration (NHTSA). What this means is States can receive federal grant money to purchase PBTs.
PBTs have been approved for use in Arizona by the Department of Safety.
The purpose of the preliminary breath test is two functions it can perform. One is if it’s more than .08%, it can be used as a basis to justify an arrest. If someone were to file a motion to dismiss a case, no probable cause for an arrest, in that proceeding if there was a PBT with a result of .08% or more that would be evidence of probable cause for the arrest.
The second use is if the results are more than .15%, it can be used to justify an impoundment of the driver’s vehicle for under a 20-day impound that we now have in Arizona.
PBT Test Results are Generally Not Admissible in DUI Trials
Any Breath test results may be admitted into evidence at trial using one of two methods.
- Has been approved for use by the DPS
- The operator has a permit from DPS to use the device
- The operator follows a DPS approved checklist
- The testing sequence included 2 calibration tests to show the device is working accurately.
PBT test results are not admissible under this statutory method because the required procedures are not followed in Arizona.
- Collins v. Seidel, 142 Ariz. 587 Any relevant evidence, including breath test results, is admissible under Arizona Evidence Rule 402. Under the Collins case, breath tests to be admissible can be admitted under Evidence Rule 702 if an expert witness must testify that the testing method was scientifically reliable.
The problem with admitting PBT test results this way is the experts would say the testing procedure in the DPS regulations is the scientifically reliable procedure for breath testing and so if the test results are not obtained using the DPS approved procedures, those results are not scientifically reliable.
How accurate is the PBT?
I’ve seen many cases where they correlate very closely with what the alcohol level is in terms of the subsequent breath or blood test results. They can be very accurate. Having said that, I’ve also seen them being very inaccurate. The widest variance I can recall, I had a case a couple of years ago where the PBT result was.31%, and the blood test results came back as .16%. That was quite a bit of difference.
I have another case right now where the preliminary breath test came back at .173 %. A half an hour later, my client was at the station taking breath tests, and those came back .12 %. In this case there was a major problem with the inaccuracy of the PBT. My client’s vehicle was impounded for 20 days based on the PBT results even though the more reliable breath test results at the station where below the .15% Extreme.
In short, in terms of the PBT’s accuracy, I’ve seen them be very accurate. I’ve also seen very large variances. That is one reason why the PBT is not admissible in a trial because there are variances. They’re not required to keep PBTs calibrated in the same manner as it would be in an Intoxilyzer device. For the PBTs the officers not required to make sure mouth alcohol is not a problem as they are under the protocol for the more reliable Intoxilyzer tests. The PBT can produce very high and inaccurate results, and that’s why they’re not admissible at trial.
Do People Confuse the Portable Breath Test with the Evidential Breathalyzer at the Police Station?
Yes, that happens quite often. The officers have to be a little careful because frankly quite often they’re talking to somebody who’s impaired and sometimes that’s where there’s the confusion. They get back to the station and say, “Why do I have to take another test? I’ve already taken one. I took one out on the street. I did that just like he asked. I’ve done what you asked, I’m not going to do it again.” That can be the problem because they’re not required to take the preliminary breath test out on the street.
They can do it or not. If they don’t, the fact that somebody doesn’t do the preliminary breath test can’t be brought up in court. The problem is when you get to the station or the van where you’re asked to take a regular breath testing device on the Intoxilyzer, that you have to do or if you do not do that, your license will be suspended. It can cause a problem, and the officers have to be very careful about that to make it very clear that if the person submitted to the one out on the street, the preliminary test, that does not mean that they do not have to take the one on the Intoxilyzer later.
Gordon Thompson. Criminal & DUI lawyer for 47 years. If your goal is to get the best result for you DUI case call me now.
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