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 any 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.
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.
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? Most are not approved devices and the procedure for administering the test has not been approved so, it will not be used as direct evidence if the case goes to trial. This does not mean that the damage hasn’t already been done.
YOU REALLY SHOULD KNOW
These devices are fuel cell technology. They are inherently unreliable and subject to many false readings. This is different technology from the test given at the police station, which is Infrared technology. While still subject to many false readings, the infrared is more accurate than the roadside toy.
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. A good example is shown in this video.
The PBT test can be politely declined. There is no legal requirement to blow into such device.
Declining to take the PBT DOES NOT mean you have refused to take the actual breath test.
You still have a choice on the “real” breath test given at jail.
You may still refuse to take the State’s Breath test but it is a separate decision—or it should be.
Know your rights. An officer cannot ‘decide’ that refusing the PBT means you refused all tests.
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