Preliminary / Portable Breath Test (PBT)

Preliminary breath testing is another stage of the pre-arrest screening phase of DUI detection.

The Washington Administrative Code provides that preliminary breath testing is voluntary. WAC 448-15-020. Also, as discussed above, individuals have a common law right to decline field sobriety tests. City of Seattle v. Stalsbroten, 138 Wash. 2d 227, 237, 978 P.2d 1059, 1064 (1999). But the Washington Supreme Court has held that admitting evidence of a defendant’s refusal to perform a field sobriety test does not offend the Fifth Amendment right against incrimination and that it is constitutionally permissible to admit evidence of a defendant’s refusal to take a field sobriety test. Stalsbroten, 138 Wash. 2d at 237-239. However, breath testing constitutes a search and seizure. Missouri v. McNeely, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013) (blood test implicates “most personal and deep-rooted expectations of privacy”); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-617, 109 S.Ct. 1402 (1989) (explaining urine, blood, and breath testing are searches). And the Washington Court of Appeals has held that it was manifest constitutional error to use a Defendant’s invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of his guilt. State v. Gauthier, 174 Wash.App. 257, 298 P.3d 126 (Wash. Ct. App. 2013). Therefore, a refusal to submit to a PBT test should not be admissible as evidence of guilt. But this is still an evolving area of law. Courts differ on the issue at present. Nevertheless, drivers should consider politely refusing a PBT. Drivers do not need to prove their innocence. The prosecution must prove guilt beyond a reasonable doubt. In general less is more in terms of criminal defense.

A PBT is inadmissible for any purpose in the absence of a Frye hearing or specific approval of the device and its administration by the state toxicologist. State v. Smith, 130 Wash.2d 215, 222, 922 P.2d 811 (1996). PBT devices have been approved only for establishing probable cause. WAC 448-15-010. PBT results may not be used for determining whether a person’s breath alcohol concentration exceeds .08 or more under the DUI statute. WAC 448-15-010. Therefore, even if a driver submits to a PBT the result must not be admissible at trial.

A PBT result may also be attacked for purposes of challenging probable cause. Residual mouth alcohol that remains in mouth tissue will impact the accuracy of the test and may cause the PBT result to be higher than the test subjects true breath or blood alcohol concentration. Other breath contaminants such as ether, acetone, acetaldehyde, cigarette smoke, and other contaminates may result in a false or inaccurate reading. A specific test protocol must also be followed by the officer utilizing the PBT device. WAC 448-15-030. Failure to follow the protocol may negate the accuracy of the test for purposes of probable cause. The PBT device must also be certified every sixth months. In order for the PBT to be certified the protocol approved by the state toxicologist must be followed. WAC 448-15-040. The officer operating the PBT device must also be certified to use the instrument. WAC 448-15-050.

Contact the DUI defense attorneys at Platt & Buescher today to talk about resolving your DUI charge. The DUI attorneys at Platt & Buescher serve Oak Harbor, Island County, Bellingham, Burlington, Mt. Vernon, Whatcom County, Skagit County, Seattle, King County, and greater western Washington.