Due to the increasing use of roadside Portable Breath Testing (PBT) by Ohio law enforcement, I thought it would be helpful to discuss issues concerning how a PBT may impact the case of a person charged with DUI/OVI in Ohio. This blog is not designed to cover every issue PBTs create, because the law concerning PBTs is complex and constantly being reviewed. If you have been charged with DUI/OVI, be sure to contact a lawyer, such as myself, to be certain that all issues and potential DUI defenses are being raised on your behalf. A decision not to fight a DUI/OVI should never be based upon a PBT!
A PBT device is a handheld machine, into which a person suspected of DUI/OVI blows a breath sample. Most often the PBT is performed while the person is still at the scene where he/she was stopped and detained by law enforcement. The PBT results theoretically give an estimate of a person’s blood/breath alcohol content (BAC). In Ohio, it is “Per Se” illegal to operate a vehicle (including a bicycle) with a BAC equal to or greater than .08. The “Per Se” charge is discussed in a previous blog.
Because of the “Per Se” law, Ohio courts have said that the reliability and accuracy of a BAC test is crucial, in order to use it as evidence to convict a person of “Per Se” DUI/OVI. As a result, in Ohio, the only person with the authority to determine whether or not a BAC testing machine/device is accurate and reliable, is the Director of the Ohio Department of Health. However, even if a machine/device is approved by the Director, that does not automatically mean every test result from an approved machine is valid (this is one reason a qualified DUI attorney is important). Currently, no PBT device is included in the list of approved BAC machines/devices. As a result, a conviction for DUI/OVI should not be based upon a PBT.
So, if the PBT result is not reliable enough to be used as evidence to convict a person of DUI/OVI, what is the purpose of a PBT? Simply, in many parts of Ohio (not all), the PBT result is used by law enforcement as evidence to prove that the officer had a reasonable basis to believe that a person is intoxicated for DUI/OVI purposes. Depending on the circumstances of a case, it may be appropriate to challenge whether or not an officer had specific information to stop, detain and arrest a person for DUI/OVI. To determine these issues, some courts look at the PBT as one piece of evidence, along with other evidence of intoxication, such as the odor of alcohol, bloodshot eyes, slurred speech and the results of field sobriety tests, to determine if an officer was justified in detaining, investigating and arresting a person for DUI/OVI. This court determination is not a decision on a person’s guilt or innocence.
It is important to understand that a person has a choice whether or not to take a PBT, in the same way that a person has a choice whether or not to perform field sobriety tests. I discuss the issue pertaining to Ohio field sobriety testing in my website. However, officers do not voluntarily tell a person a PBT is not mandatory, unless asked!
Because no PBT device has been determined to be reliably accurate by the Director, at this time a person’s driver’s license should not automatically be suspended, under the Ohio “implied consent law,” for refusing to take a portable breath test. The “implied consent law” applies only to the refusal to take an approved BAC test. Again, keep in mind the law pertaining to PBTs is frequently being reviewed, so make sure to discuss this issue with an attorney!
I believe another reason officers want people to take a PBT, is the psychological impact on a person accused of DUI/OVI, if the PBT result is equal or greater than .08. Such a test may make a person think they have no defenses or issues to fight a DUI/OVI. That frequently is not the case. There may be multiple reasons to challenge a DUI/OVI. As I said earlier, a decision not to fight a DUI/OVI should never be based upon a PBT!
Good luck and safe driving!
