These are common statements by law enforcement when people are asked to take a roadside breath test- commonly call a PBT (preliminary breath test). This normally happens just after taking the ill-advised field sobriety test.
While it may be easy to understand the first question, “see if you are good to drive,” it is an insult to us as Americans and our constitutionally guaranteed rights. We are not required to prove our innocence, and that is really what the question says. It is the Officers responsibility to develop probable cause to detain you, to extend an investigation or make an arrest. Even in Court, you do not have to prove your innocence, the burden remains with the government. You Do Not have to prove your innocence!!
The second statement “It can’t be used against you in court” is at best completely wrong and at worst a deliberate lie!
- It most definitely will be used against you.
- It will be included in the police report.
- It will be included in any probable cause affidavit.
- It will be discussed at Administrative hearings regarding your driver’s license.
- It will be discussed during hearings before the Judge if a motion is filed to suppress your arrest.
- A recent decision by the Oklahoma Court of Criminal Appeals-State v. Hodges 202 OK CR 2- ignores science and ignores the intent of the law by now allowing the PBT to be used as evidence.
The third statement is again upside down in its approach. You were already going down the road before the officer stopped you. He is the one who must justify detaining you. You are not required by law to blow in the roadside device. There is no penalty for not blowing. Of course, if an officer is asking you to blow, they most likely have already decided to arrest you so be prepared. At least you are not volunteering more evidence against yourself.
There are a variety of these devices being used and there is no standard product. They might come from a manufacturer, police supply, Sharper Image, Best Buy‑who knows? They are not approved evidentiary devices and the procedure for administering them has not been approved. There are no standards for calibration or verification.
You Really Should Know
The PBT does not discriminate between blood alcohol and breath alcohol. Many people are stopped shortly after leaving a restaurant or bar. Often the last thing they do is finish the drink in front of them. 10 minutes later that drink will not be absorbed into the blood system (what the test is SUPPOSED to measure) but it will still be present on the breath and give a false reading. This video shows how wrong they can be.