Your Rights Regarding Preliminary Breath Tests When Pulled Over For DUI
There is some confusion about breathalyzer tests in the contest of Florida drunk driving cases, leaving many motorists unsure about whether and when they can refuse to blow. Like many states, Florida has enacted an implied consent statute, which requires drivers to submit to chemical testing as part of a DUI investigation. The rule is a type of condition attached to your driving privileges: You impliedly agree to a chemical test for measuring your blood alcohol concentration (BAC) as a condition of receiving your driver’s license. The consequences for refusal are severe.
However, the implied consent statute only applies “if the person is lawfully arrested.” So where does that leave a motorist who has been pulled over and asked to blow into a portable device – but not arrested? Only an experienced Florida DUI defense attorney can tell you how the law on Preliminary Breath Tests pertains to your specific case, but the answers to some general questions may be useful.
What is a Preliminary Breath Test?
The Preliminary Breath Test (PBT) refers to a situation where you are asked to blow into a portable device, which is used by many police officers to measure BAC during a roadside stop. The technical term for these units is Non-Evidential Portable Hand-Held Devices and, as the name implies, the results cannot be used as evidence in court. They are not very reliable because they are sensitive to temperature and air-borne substances. Gasoline, paint, and other strong fumes – many of which may be present at a roadside stop – can lead to inaccurate results.
How is a PBT different from a BAC test?
Unlike the portable devices used to for PBTs, an official BAC test uses an Evidential Breath Testing Device; the results of this type of testing can be used against you in court. However, this unit is a larger, table-top device that is not practical for portability. Plus, BAC exams can only be conducted by certified personnel, under certain test conditions. They must be properly maintained, calibrated, and kept secure. For these reasons, police officers do not typically use them for roadside testing
Can you object to either type of breath tests?
Florida’s implied consent law only requires chemical testing “if the person is lawfully arrested,” so you do face penalties if you refuse the official BAC test. For a first offense, your driver’s license is automatically suspended for one year; second and third refusals to blow can lead to an 18-month suspension of your driving privileges. First-time offenders may be able to get a hardship license after 90 days, but a second or third refusal will make you ineligible.
If an officer requests you to blow into a hand-held device for purposes of a PBT, and you are not under arrest, you can officially decline to do so. Unofficially, there may still be unfortunate consequences: The officer may decide to arrest you, at which you must submit to the BAC test. In some situations, it is better to blow for purposes of a PBT – and then fight the charges.
Talk to an Experienced Florida DUI Defense Lawyer
If you were arrested based upon PBT test results, it is critical to retain a knowledgeable attorney to defend your interests. Schedule a free consultation today by calling the Fort Lauderdale office of attorney Kevin J. Kulik at 954-761-9411 or visiting our website.