Breathe a Sigh of Relief: Callahan Law is Driven in Defense of Those Who Drive
The Portable or Preliminary Breath Test
A test that may have been administered just prior to your DUI arrest is the preliminary / portable breath test or PBT. The purpose of the PBT is to confirm the officer's suspicion and to establish probable cause for your arrest. The PBT is not an evidentiary alternative to the formal breath test given at the station.
The PBT is a voluntary test and the results are generally not admissible in court; most PBT devices are not sufficiently reliable to meet court admissibility standards. For example, if you had recently consumed gum, cough syrup, mints or used an inhaler prior to taking the PBT, a false positive reading could have given the officer probable cause to arrest you.
A DUI arrest can be challenged if the police officer did not follow proper procedures for administering the PBT. That’s why the lawyers at Callahan Law will scrutinize the evidence the officer relied upon to establish probable cause to arrest you. If the evidence was insufficient, or if the officer made an error of constitutional magnitude, it could unravel the prosecutor’s case against you.
The Evidentiary Breath Test
The formal, legal breath test generally occurs at the jail or police station, although the State Patrol now has a roving mobile unit (in an RV) which has breath testing equipment in it. Before administering the test, the officer must check the driver’s mouth to ensure it contains no foreign substances. Following the mouth check, the officer must ensure that, for the fifteen minutes prior to the breath test, the person puts nothing in his or her mouth and does not vomit. A test that is not performed according to these standards, and others required by law, is not a valid test and should not be admissible in court as evidence.
The officer is further required to advise you of your Miranda Warnings (your right to silence and to a lawyer) and the Implied Consent Warnings prior to administering the legal breath test. In Washington, the implied consent law presumes your consent to taking the breath test. If you refuse the test, your license will be revoked for at least one year if you do not prevail at the administrative licensing hearing and for at least two years if you do not prevail in court. In addition, the prosecutor will attempt to characterize your refusal as evidence of a guilty conscience at trial. The prosecutor may also be less inclined to negotiate a reduction of the charge. You need competent counsel to determine whether your refusal was actual, knowing and informed, and if not, to challenge the refusal evidence.
If you decide to take the test, the officer will have you blow into a mouthpiece connected to a tube. You will be asked to give two samples. The mouthpiece must be changed between the two samples. You should be told to “blow steadily into the mouthpiece 10 to 15 seconds, I will tell you when to stop.” The officer is trained to not tell you to stop, but to let you run out of breath. This is because the longer you blow, the higher the test result. Only 5 to 7 seconds are required by the equipment for a valid sample to be obtained. If the officer coaches you to “blow harder!” it has the effect of manipulating the test and could be grounds for your lawyer to move to suppress the test.
If you took the test and blew 0.08 or more (differs for minors and commercial drivers), your license will be suspended for at least 90 days if you do not prevail at the licensing hearing and in court.
The lawyers at Callahan Law understand the science of breath testing and have access to the firm’s breath test machine which is the same equipment used by the police for breath testing. They are current on developments in breath test procedures, laws, and challenges. There are many defenses and issues relating to the accuracy and reliability of breath and blood tests that may apply to your case. Don’t make the mistakes many others do after a DUI arrest; they don’t seek legal counsel immediately with a lawyer who focuses on DUI defense. With every hour that passes after your arrest, you will forget details that seem insignificant to you, but may be extremely important to your defense. Call or email Callahan Law now for a free consultation; we are here for you 24/7.