The Handheld Preliminary Breath Test

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: When these tests are being administered does the police officer already believe the person is intoxicated and they’re just doing it to cement their reasons?

Acacia Law: Sure. The first thing they usually do is have them undergo is a PBT, that handheld Preliminary Breath Test. Even though the error margin is plus or minus 20% and inadmissible in law because it’s so inaccurate, if it reads high it really doesn’t matter. They’ll still put them through the litany of tests but there’s no way they’re going to let them pass. They’re going to mark every singly box they can think of, every single tiny mistake the person makes.

They actually use that PBT as a crutch. The police are pretty sure if they take a blood or breath sample, it’s likely going to be over a 0.08. That’s all they really care about. They’re just doing all this other exercises so they can throw so much evidence they can at the person that they’ll plead guilty.

This preponderance of evidence can present some issues for the defence attorney who has to actually go after this evidence and fight it. This is because the jury is specifically instructed to weigh the credibility of the evidence, whatever evidence comes in. That’s where an attorney can step in and say, “Does this sound believable? Do you think this evidence is really credible of whether the person was impaired to the slightest degree?”

The Field Sobriety Tests Confusion: These Tests Cannot be Passed

Interviewer: Do you hear comments from people such as, “I failed the walk and turn. I thought I passed all those tests.” Why did they arrest me? This confuses people. They seem like valid tests and they’re just being done deliberately to bury the person further.

Acacia Law: Most people who come into my office say they passed the test and don’t understand why they were arrested. They didn’t pass the test but they were never going to pass the test. The officers don’t tell them they failed the test, they just tell them they’re satisfied. After they do the test, they usually say, “Okay. Now can you do one last thing for me? Face your car and place your palms down on top of the hood or the trunk of the vehicle?” Then they get behind them and they take their hands, place them in handcuffs and say they’re under arrest for DUI.

Interviewer: You mentioned a preliminary breath test. What is the name of the device they use in Arizona to administer it? What does it look like?

Acacia Law: It looks almost like a handheld gun and I’m not sure if there’s a specific brand name that they use. I’ve never cared because, as I said before, they don’t bring them in the door because nobody cares. The best they can state is that the person consumed some alcohol. What is the brand? There are a number of different brands; in fact, you can buy them yourself if you want. They basically have to be approved devices but the statutory requirements and approval of the device are very low.

Even with the breath machine itself, there are so many versions of the Intoxilyzer. There used to be a 5000 series. I think there’s a 7000 series and there’s always a new series. Supposedly, they’re upgraded. Some series had problems. I don’t even pay attention anymore. The bottom line is whatever Intoxilyzer they use I can find out all the information on it in a split second. It’s really that simple.