Preliminary Breath Test: Friend or Foe?

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A preliminary breath test (PBT) is a procedure where the person whom the test is being administered to provides a specimen of breath into a device (a breathalyzer) which can indicate whether the amount of alcohol in the person’s breath is likely to exceed the legal limit. Many will encounter this preliminary test on the side of the road after completing the field sobriety tests.

With a PBT, a key issue that happens in OWI cases is where the PBT was done before the field sobriety test. Officers are sometimes in too much of a rush, especially during the closing times of local bars, to make successful OWI stops. At initial contact prior to the field sobriety test, some officers will make the procedural mistake and ask for a PBT. Depending on the specific facts, this could be a violation of the defendant’s 4th amendment right to not being searched without cause. In order for an officer to take a sample of your blood, breath, or urine, he or she must first have probable cause to do so. This means that they have to collect enough evidence in order to ask you to do a PBT. Officers normally meet that burden by having you go through the field sobriety tests. If you fail a majority of those tests, then that is usually enough probable cause to take your breath sample with a PBT.

An important question many ask is whether taking the PBT will help or hurt them. The purpose of the PBT is to give the defendant one last chance to prove that they are not driving while intoxicated. Many people with a history of physical injuries or those who are very over weight will find it difficult to successfully pass the field sobriety tests. The PBT is their chance to prove that they did poorly on the tests because of a reason other than drinking.

Although the PBT may help show that you are not intoxicated, it is more common that the defendant has been drinking and may actually be intoxicated. So you ask, can you refuse the PBT if you know the results won’t be in your favor? Well in Wisconsin, there are no penalties for refusing the PBT, however if the officer has enough probable cause for your arrest then they will request an official sample of your blood, breath, or urine. Once you are arrested, there are harsh penalties for refusing to provide an official sample of your blood, breath, or urine. Furthermore, even if you do refuse the official sample, if this is a second offense or higher then the officers may forcefully take that sample once they obtain a search warrant.

If this is your first time refusing then your license is revoked for one (1) year and you will have to have an Ignition Interlock Device installed in your car at your expense. You will be able to apply for an occupational license after thirty (30) days. If this is your second time refusing then you are facing a two (2) year revocation of your license and again an Ignition Interlock Device will be installed in your car at your expense. You can apply for an occupation license after ninety (90) days. Lastly, if this is your third time or more refusing then your license will be revoked for three (3) years, an Ignition Interlock Device will be installed at your expense, and you will not be able to apply for an occupational license until one hundred and twenty (120) days pass following your refusal conviction. These waiting periods are separate from the waiting periods if found guilty for an OWI second offense or higher.

So after taking in all this information, it is best to say that if you truly believe that your blood alcohol content is not close to or higher than the legal limit, then the PBT can be your friend to prove to the officer that you did poorly on the field sobriety tests for reasoning other than drinking. However, if you do believe that you are intoxicated then it is best not to take the PBT because blowing above the limit will add to the evidence the officer is trying to collect to meet their probable cause burden to arrest you. However, it is important to note that the PBT results cannot be used against you in court, only the result of the official blood, breath, or urine sample.

RefusalsThe Difference Between an OWI and a PAC

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