Tahlequah Attorney BlogCan a Portable Breath Test Be Used Against You in Court?

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Video Transcribed:  Can a portable breath test be used against you in court? My name is Ryan Cannonie, I am the Tahlequah Criminal Defense Attorney for the Wirth Law Office in Tahlequah. Something that’s come up over the past five to, I wouldn’t even say 10 years, it’s more like five to seven years, has been these portable breath tests, PBTs is what they’re called, and how much admissibility they get in court. A PBT is a breathalyzer for alcohol determination, to determine your blood alcohol content, that officers can have with them out in the field.

Normally, whenever you have a breath test, you’re going to have to be taken back to a station, someplace, the machines are too big, really, to transport. Other than certain DUI intervention kind of things where they do big enforcement and they have roadside DUI testing set up in a big truck or something, for the most part, you’re pretty much always going to be taken back to a station of some sort.

There are all types of things that have to go with that procedure-wise. There’s a deprivation period, which means they have to be eyes on you watching, make sure you’re not eating or drinking anything. They have to check your mouth for, make sure there’s nothing in there.

I’ve heard this before, but the penny thing under your tongue, that’s not going to impact anything, normally. What it’s going to do is show that they didn’t follow the procedures. The penny doesn’t really change the test, it makes it so that your attorney can probably get the test kicked out. Just let me clarify that urban legend.

I heard that all the time when I was in college, and it never made sense to me then, until I got out and started practicing and then I found out why it actually doesn’t necessarily work, but why the urban legend is about that.

These big machines aren’t practical to take around the field, but technology is always changing. They have now, they’re these little PBTs, they’re a little breath thing. You can actually buy a version on Amazon for personal use.

It’s not the same that officers would have for the most part. Some of them use those, but some will use a different type than you can get as a civilian. But, these will measure blood alcohol content.

Now, when I was a prosecutor, I found them to be decently accurate, comparing a PBT blood alcohol to later a breath test blood alcohol. But, the big thing about these is they’re not admissible in court.

The only thing they can be used for is to show probable cause to arrest you, that you have been under the influence. They can’t actually be used to show your blood alcohol results in court, with an asterisk there.

The caveat on that is if they comply with the Board of Test, which is the testing regime that sets all the standards for blood alcohol tests, the breathalyzer, and all that, across the state, if they comply with those rules because they have started making some rules for a portable breath test, then it can be used.

Now, almost every officer I know with the exception of a couple of highway patrol troopers, don’t have ones that can be used in court. What they’ll do use them for is to be able to have the authority to go ahead and arrest you. They’ll put in the report that the PBT showed a probable consumption of alcohol, and it’s used to make your arrest legitimate.

Then they’ll take you in and ask you for implied consent to see if you will agree to a breath or a blood test. Even if you object to those breath or blood tests, they still have the PBT results, that’s enough to go ahead and arrest you.

If you have questions about the PBTs, about DUIs, about breath tests, then please give us a call, go to tahlequahattorney.com, send us a web form. We’ll get with you as soon as we can, and hopefully, we can answer your questions, because there’s a lot when it comes to DUI law that, I was a prosecutor for seven years, so I understand where they’re coming from on that.

But, there’s a lot that you have to know about DUIs. For instance, when I mentioned the Board of Tests, they put out all these rules for DUI testing, and all of those have to be complied with. If they’re not, then that means that it’s possible an attorney can get your blood alcohol test thrown out of court, which severely hampers the prosecutor’s ability to continue to charge you with that. Give us a call, we’ll see what we can do to help.

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