In The News

Thursday, September 17, 2009

Should You Take The Preliminary Breath Test?

By Michael Nichols
Categories: Drunk-Driving, OWI

The short answer is no, you should not take a Preliminary Breath Test (PBT). Of course there are exceptions to the rule but you won’t be in a position to make the evaluation while the Officer is pushing the PBT at you on the roadside.  Better that you stick to a rule of thumb and just say no!

First and foremost, understand that there is a difference between the PBT and the Datamaster/breathylyzer test. The PBT is administered on the roadside after you have been pulled over and, typically, after performing a few roadside Field Sobriety Tests (FST’s). It is not the official test and cannot be admitted into evidence at a trial. The officer should advise that you have the right to refuse the PBT; however, if you refuse the PBT you will receive a civil infraction ticket which carries a fine. The Datamaster/ Breathylyzer test is the official breath test that is only given after you have been arrested and is given at the jail or police station. If you refuse to take the Datamaster test your Drivers License will be suspended for a year.
First, the police officer pulls your vehicle over for a perceived legitimate driving infraction. When the officer approaches your vehicle, he will often state that he smells alcohol and ask if you had anything to drink.  Based upon your answer and/or the officer’s suspicion that you had been drinking, he will ask you to get out of the vehicle and perform the Field Sobriety Tests (i.e. one-leg stand, walk and turn, etc.).  Administering the roadside tests is something of an art form and many officers unwittingly administer them incorrectly. Be that as it may, if you do well on the FSTfst’s you should be allowed to leave with only a citation for the original stop. However, as a general rule, regardless of how well you perform the roadside tests, you will be asked to take a PBT.
If you have only had a couple of drinks and feel perfectly able to drive safely and have done well on the fst’s then the officer has no reason to continue your detention. The officer is fishing for evidence and will want to make you feel obligated to provide it. Remember, there is nothing illegal about driving after you have been drinking.  It only becomes illegal if you drink and then drive with a BAC of .08 or greater.  If you refuse to take the PBT the officer will write you a ticket for the refusal. The ticket will cost you about $160. It is true that you MAY be arrested for drunk driving anyway.  But the officer is taking a chance that the arrest will be ruled invalid and that all the subsequently obtained Datamaster evidence will be suppressed. The officer is also taking a chance that he is arresting you without probable cause and the Datamaster test results will prove it! The last thing the officer needs is to arrest and detain a citizen without probable cause and then have the Datamaster show a legal blood alcohol content.   

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.