Is a PBT admissible against me?
If you are facing drinking and driving charges you probably have a lot of questions. Call Michigan drinking and driving lawyer, Aaron J. Boria today for answers (734) 453-7806.
One question we get a lot is, how the preliminary breath test be uesd against me?
There is a good chance that the Preliminary Breath Test (or PBT for short) was part of or the sole reason for your arrest.
After the arrest is made you will be asked to submit to a second blood draw or breath test referred to as the DataMaster.
Preliminary Breath Test
The preliminary breath test is a search performed during the investigation of drinking and driving, and other alcohol related offenses before you are placed under arrest.
In most cases, you will be asked, or ordered, to submit to field sobriety tests. The officer must have some amount of probable cause to believe that you have committed an alcohol related offense in order to order you to submit to a PBT.
Be careful, the officer can “ask” you to submit to a PBT, rather than order you, if they do not believe they have enough evidence. Consenting to the PBT gives the officer enough probable cause to arrest you even when they did not have enough probable cause to require you to take the test. Consent is a search exception. I put “ask” in quotes because it’s amazing how an officer’s orders will be interpreted by the prosecution as a “request to consent” and not an order.
You can quickly eliminate any ambiguity by simply asking the officer if they are ordering you to take the test or asking you to consent. Remember; always be polite when talking with the police.
PBT as evidence of guilt
You can bet that if you take a PBT the results will end up in the police report and will be read by the judge or magistrate when setting bond.
The results of the PBT will be admissible if your lawyer raises a legal issue challenging whether or not there was enough probable cause to arrest you.
The PBT will not be admissible evidence in a jury trial. The only evidence admitted to a jury of a blood alcohol level will be that of a laboratory confirmed blood draw or a DataMaster result. There is one exception:
Rising Blood Alcohol Defense
The PBT results can be raised by the prosecution to rebut evidence presented by your lawyer at trial that your blood alcohol level was actually lower when you were driving then it was when the blood was drawn or breath was taken from the DataMaster after the arrest.
For example, many drivers will try to argue that their last drink did not hit them until after they were driving, pulled over, arrested, and taken into custody. The argument is that the driver didn’t actually break the law, because during the actual time of driving the blood alcohol was within the legal limits.
Because of the way alcohol digests through a persons body and ultimately into the blood, it is very possible that while driving, the driver’s BAC was not over an .08 BAC, but became a .08 BAC or more, as time passed, while they were being investigated by the police.
Obviously, a jury will only be willing to accept this defense if the driver made it where they were going, or there was a very long delay in the investigation for the blood to digest.
Here is where the rebuttal rule comes in. If the DataMaster or blood was a .08 or more and your lawyer argues that your blood alcohol was rising during the investigation, and was below the legal limit while you were driving, then the prosecution would be able to introduce the PBT test taken during the road side investigation to say that your blood was actual over the limit while driving.
Michigan DUI Lawyer
Trying to explain a fairly complicated DUI issue that is contained within multiple MCL’s and Court opinions and condense it into a page is no easy task.
If this blog was as clear as mud feel free to contact Michigan DUI lawyer, Aaron J. Boria today for a free consultation (734) 453-7806.
We fight for our clients and we get results.
