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Should you give a portable breath test? -

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Should you give a portable breath test?

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3 Reasons Why You Should Opt to Forgo a Preliminary Breath Test

Many police precincts within New Hampshire are now utilizing devices that are frequently referred to as “preliminary breath tests”, or PBTs for short, in conjunction with their DWI investigations. As we’ll discuss, many NH DWI lawyers believe that it is generally a bad idea to submit to one of these tests.

As a preliminary issue, it is imperative to understand the differences between PBTs and standard Breathalyzer tests, which are administered with a complex machine called the Intoxilyzer. A PBT is a handheld, small device that police officers generally store in their patrol vehicles. Roughly the size of a VHS video cassette, these devices usually have a small, disposable mouthpiece attached that is white in color. Just like the name indicates, this machines are generally utilized during the initial roadside stages of a DWI investigation. The equipment used by most law enforcement agencies to conduct a PBT has not yet been approved by the New Hampshire Department of Public Safety for use as an “evidentiary test”. Therefore, the results obtained through the use of a PBT are inadmissible in a NH court of law.

On the other hand, an Intoxilyzer breath test is usually conducted once a motorist has been taken into custody for a DWI. A skilled New Hampshire DWI attorney can successfully challenge the accuracy of one of these Breathalyzer tests; however, it is generally believed to be much more accurate than its portable and smaller counterpart, the PBT. If the police officer who administers the Intoxilyzer test has been certified and conducts the test according to the established guidelines, such results are, most often, considered admissible within a court of law. The PBT and Intoxilyzer can be readily distinguished from one another because the Intoxilyzer is a much larger device and features an elongated tube that connects the mouthpiece to the machine.

While there are a number of factors to consider before refusing to submit to an Intoxilyzer breath test, it is generally recommended that you avoid submitting to a PBT for the following reasons:

1.      The results of a PBT can be used by police officers to conduct an arrest and obtain additional evidence against you.

New Hampshire police officers cannot place an individual under arrest without the issuing of a warrant unless they believe that individual has committed a crime. A DWI is not an exception to this well-established rule. NH law enforcement officials generally cannot conduct a blood alcohol test until after the motorist has been formally arrested. If the motorist was operating their vehicle appropriately, performs well or refuses to submit to field sobriety tests, then the police officer will lack the required evidence to support their probable cause. A motorist may avoid arrest altogether or have any potential evidence gathered prior to the unlawful arrest suppressed by a NH court. However, if our hypothetical motorist were to submit to a PBT, the ensuing results could create a legal justification for the police officer to make a DWI arrest and further their investigation.

2.      A PBT increases the amount of time you are in contact with law enforcement officials.

When forming probable cause to make a DWI arrest, police officers are not solely limited to the use of PBTs and field sobriety tests. In addition to these tests’ results, officers also rely upon general observations made in regards to appearance, odor, balance, demeanor, and an individual’s level of coordination. Bear in mind that, while a motorist provides a breath sample for a PBT, the PBT device is held in the officer’s hand. Within such close confines, a police officer will have the chance to make more detailed observations regarding the aforementioned characteristics. If, during this contact, the police officer observes any details that are consistent with impairment due to alcohol consumption, then such observations can be used as a justification for making a DWI arrest and at a subsequent trial.

3.      PBTs are neither reliable nor accurate.

There is a good reason why PBT test results are not admissible in a court of law – the equipment utilized and the manner in which it is obtained is not scientifically supported. When compared with the results of a more scientifically accurate Intoxilyzer test or blood test, PBT devices often grossly exaggerate the actual alcohol concentration of one’s blood. In one study in Arizona, PBT devices were found to create inaccurate results in 72 out of 141 suspected DWI cases in which they were used. This equates to an accuracy rate of only 49%. Elevated PBT test results can be used to charge a motorist with aggravated DWI when it is not warranted. While New Hampshire motorists in such a situation can ultimately avoid a DWI conviction and its associated penalties, the humiliation, stigma, and embarrassment that accompanies a DWI arrest is seldom forgotten.

Unfortunately, law enforcement officials rarely inform motorists that submitting to a PBT is wholly voluntary. Regardless of whether a police officer ask you to blow “just to make sure you’re ok to drive” or suggests that there “will be more trouble” if you do not cooperate, you must understand that you have the absolute legal right to refuse. Before blindly agreeing to submit to a PBT, an informed New Hampshire motorist will bear these legal rights in mind along with the considerations discussed above.

If you have been arrested on suspicion of driving while intoxicated in the state of New Hampshire, it is imperative for you to have skilled legal representation fighting on your behalf. Contact our law offices today to be placed in contact with one of our experienced NH DWI attorneys. Your initial consultation is 100% free, and we will provide you with an honest and fair assessment of your case.

Reasons to give the PBT

 However, it is sometimes good to give a PBT. The officer must give you specific warnings. If you gave the PBT and the result was bad, if the officer did not properly follow the statute, a good DWI lawyer will be able to get the evidence excluded at trial. Attorney Hynes has been able to keep the results of the PBT out of trial in many cases, including leading to a finding of no probable cause and having the case dismissed. If you pass the PBT, you might not get arrested. It is also good to know if you are below .16 so that you do not give a breath test at the police station and get charged with aggravated DWI which has mandatory jail time if convicted.



Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship and the information on this site is not legal advice and may be inaccurate or not applicable to your case. Each case is different.

Mailing Address: Dan Hynes PO BOX 598 Merrimack, NH 03054