Preliminary Breath Test admissible in a DUI?

If you are facing drinking and driving charges there is a good chance that the Preliminary Breath Test (or PBT for short) was part of or the entire reason for your arrest.

If you have been charged with a drinking and driving offense in the state of Michigan than you need to call Michigan DUI lawyer, Aaron J. Boria (734) 453-7806. 

Boria has obtained favorable jury verdicts in drunk driving cases, felony drunk driving matters reduced to misdemeanors, and out right dismissals of drunk driving charges. 

After the arrest is made you will be asked to submit to a blood draw or a DataMaster breath test which is admissible.

Preliminary Breath Test

The preliminary breath test is a search performed during drinking and driving, minor in possession, and other alcohol related investigations. In most cases, you will be asked or ordered to submit to a field sobriety test.

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. If the officer does not have probable cause than ordering you to submit to a PBT is a violation of your Fourth Amendment right against search and seizure. 

Be careful, the officer can “ask” you to submit to a PBT. If you consent to a search you lose the argument that it was a search and seizure violation. A PBT alone can give the police officer enough probable cause to arrest you even when they do 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.

Nonetheless, in most cases it is best to refuse to submit to the preliminary breath test. Again, the preliminary breath test is offered prior to arrest. Do not confuse this with an implied consent chemical test which is requested after you have been arrested. Refusing the implied consent test has serious license consequences.

Every case is different, always consult a lawyer directly before making a decision and never rely on a blog to make an important choice. 

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 when deciding legal issues challenging whether or not there was enough probable cause to arrest you.

The PBT results can be raised by the prosecution to rebut evidence presented by you at trial that your blood alcohol level was actually lower when blood was drawn or breath was taken from the DataMaster.

For example, many people will try to argue that their last drink did not hit them until after they were driving and pulled over, so they didn’t actually break the law. Because of the way alcohol metabolizes in the blood it is very possible that while driving they were not over an .08 BAC but became over a .08 BAC while they were being investigated by the police. Obviously, a jury will only be willing to accept this defense if you would have made it where you were going without the alcohol hitting you within the time it took the officer to do his investigation.

So, if the DataMaster was a .081 and your lawyer argues that your blood alcohol was rising and didn’t peak until you took the DataMaster then the prosecution would be able to introduce the PBT if the results were actually higher than the DataMaster results.

The above scenes can would also occur if there was the inverse, i.e., the prosecution is trying to claim your blood was higher when you were driving when in fact it was not.

The laws on preliminary breath testing in Michigan are contained at MCL 257.625a(2)(b)(i)-(iii).  

If the exceptions above the preliminary is not admissible at trial, another words, the jury does not get told that you took a preliminary breath test of the results of it.  

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.

There is a reason why judges, lawyers, court staff, police, and even prosecutors have hired or referred Boria Law to represent themselves, their friends, and family when they have been accused of drunk driving. We fight for our clients and we get results.

Call Michigan DUI lawyer, Aaron J Boria, today (734) 453-7806