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Portable Breath Test (PBT)

(Click here to view the original thread on the MassCops Message Board)

Posted by: CampusOfficer

I was reading in another thread about the PBTs and figured I would just start a new thread.

Why isn't a PBT allowed to be introduced as evidence in a trial? Is it their scientific accuracy is off? It seems like the new "OUI defense" is to challenge the time between the initial stop and the administration of the Breathalyzer; then to say the alcohol level is rising. It just seems like the PBT would put an end to that defense and truly give an accurate reading of their blood alcohol level at the time of the stop.


Posted by: OutOfManyOne

The CMRs specify the BT as infra-red machines, no language has been ammended for PBTs, which are fuel cell technology.


Posted by: 94c

lawyers, legislators, judges and alcohol are all inter-twined.


Posted by: jettsixx

I love the fact that they give us this tool but if we use it we cant testify to it. then my question is why use it in the first place.


Posted by: Killjoy

It's how you can eventually get it admitted into court. After its used again and again and again, eventually some judge will decide that its is "scientifically generally accepted technology" and establish the precedent that it can be offered as evidence in court. Its like HGN, everyone knows it works and is probably the best field test short of a PBT, but it was not admissible as evidence until relatively recently. And you still need an "expert witness" to testify as to the validity of HGN.


Posted by: Q5POS

I have NEVER used a PBT during an OUI stop nor will I ever use one. This is my reasoning.. if I can't determine whether the operator was OUI after observing his driving abilities, performing FST's, and having converstion with him, then chances are good he probably isn't drunk or operating impaired. I've seen PBT's used way too much on OUI's because the officer is solely looking to make an arrest. It's not that hard to tell somebody is impaired. Out of the 80-100 OUI arrests I've made I've never had an anybody blow into a BT without a result lower than .15. If you want to stand on the side of the road and sweat it out whether the guy is .06 or a .08, than be my guest but good luck in court. What are you gonna do when you tell them in court that you pulled him over for failure to use his signal while turning, you smelled a slight odor of alcohol on his breath, he passed all the FST's but the PBT read .08, but other than that he showed no signs of impairment. Cause the court looks at it the same way, "c'mon officer, the guy was borderline, big deal, he went out to dinner and had a glass of two of wine. We've all been there, not guilty!". When instead you can go into court with a solid case and present the evidence of him being all over the road, reaking of alcohol, fallling out of the car, and blowing a .28 on the BT. Thats what the court wants to see and I've heard that straight from a judge!


Posted by: bbelichick

Quote:
Originally Posted by Q5POS
We've all been there, not guilty!". When instead you can go into court with a solid case and present the evidence of him being all over the road, reaking of alcohol, fallling out of the car, and blowing a .28 on the BT. Thats what the court wants to see and I've heard that straight from a judge!
I couldn't care less what the court wants to see when I am making an arrest. .08 drivers kill people, too. Maybe the Judge who thinks we should only arrest falling down drunks would think differently if a family member got plowed into by a .10

Quote:
Originally Posted by Q5POS
Out of the 80-100 OUI arrests I've made I've never had an anybody blow into a BT without a result lower than .15.
Take a stab at the amount of drunks you've let bomb down the road.


Posted by: Crvtte65

Quote:
Originally Posted by Q5POS
I have NEVER used a PBT during an OUI stop nor will I ever use one. This is my reasoning.. if I can't determine whether the operator was OUI after observing his driving abilities, performing FST's, and having converstion with him, then chances are good he probably isn't drunk or operating impaired. I've seen PBT's used way too much on OUI's because the officer is solely looking to make an arrest. It's not that hard to tell somebody is impaired. Out of the 80-100 OUI arrests I've made I've never had an anybody blow into a BT without a result lower than .15. If you want to stand on the side of the road and sweat it out whether the guy is .06 or a .08, than be my guest but good luck in court. What are you gonna do when you tell them in court that you pulled him over for failure to use his signal while turning, you smelled a slight odor of alcohol on his breath, he passed all the FST's but the PBT read .08, but other than that he showed no signs of impairment. Cause the court looks at it the same way, "c'mon officer, the guy was borderline, big deal, he went out to dinner and had a glass of two of wine. We've all been there, not guilty!". When instead you can go into court with a solid case and present the evidence of him being all over the road, reaking of alcohol, fallling out of the car, and blowing a .28 on the BT. Thats what the court wants to see and I've heard that straight from a judge!
You're lucky, all of yours must of spoken English or you're bilingual. Think about the times you cannot do FST's cause the person has NO idea what you're saying (or just acting). Here, blow on this.... ding ding ding


Posted by: Dr.Magoo

Quote:
Originally Posted by bbelichick
Take a stab at the amount of drunks you've let bomb down the road.
Sometimes you get the professional drunk. I had a guy who passed all FST's. Well something told me not to let him go. I asked him to take the PBT. If he passed he could drive away. If he failed, I tow his car and PC him. The guy blew a .21 Would the OUIL arrest have been better? Sure. But if I let him go that night and he killed someone, then shame on me. He caught a break that night, but who knows maybe I saved a life too.


Posted by: OutOfManyOne

A professional drunk may pass the walk and turn and one-leg stand but not the HGN. I give HGN on every stop suspect of OUI but the PBT I give to the borderline subjects. Some blow,some don't, I have enough to lock them up if I get up to the PBT as it is the last FST administered, so they go either way. If they blow they'll make my job a little easier and if they don't take it, then they get cuffed too. If they refused the PBT they most likely will refused the BT which equals more court time.


Posted by: Rock

Quote:
Originally Posted by Q5POS
I have NEVER used a PBT during an OUI stop nor will I ever use one.
Why would you NOT want another tool to determine someone's level of impairment? This job is difficult enough as it is. Lets use everything we have at our disposal. You have discretion (thankfully) but the fact remains..... 0.08 is all you need to see. I don't care if someone is boarder line. Have I hooked people up before? Of course. That doesn't mean I'm only locking up people that fall out of their car. Ask yourself one question. Would you want someone that is an .08 to .10 driving near your mother, sister, brother or kids?


Posted by: Q5POS

Quote:
Originally Posted by Rock
Why would you NOT want another tool to determine someone's level of impairment? This job is difficult enough as it is. Lets use everything we have at our disposal. You have discretion (thankfully) but the fact remains..... 0.08 is all you need to see. I don't care if someone is boarder line. Have I hooked people up before? Of course. That doesn't mean I'm only locking up people that fall out of their car. Ask yourself one question. Would you want someone that is an .08 to .10 driving near your mother, sister, brother or kids?
I use every tool available Rock, but I learned without using a PBT maybe thats why I'm such a stickler. Hypothetically, I got a situation for you, lets say you don't have access to a PBT or it's busted, and you performed the FST's and you still can't decide whether he's a .04 or a .08, what have you proved? What do you do? Remember your not just proving that he was drinking and driving, millions of people do that after work every day. You have to prove that his drinking impaired his ability to drive. What do you do?

Quote:
Originally Posted by OutOfManyOne
the PBT I give to the borderline subjects. Some blow,some don't, I have enough to lock them up if I get up to the PBT as it is the last FST administered, so they go either way. If they blow they'll make my job a little easier and if they don't take it, then they get cuffed too.
So if you have enough to lock them up on, why bother with the PBT, seeing that its gonna get thrown out anyways? They're getting arrested either way, is it just a piece of mind thing? Do you not trust your own abilities and observations? I doubt it, I'm sure you know that he's shitty, you've proved it too yourself, and you would be able to testify in a court about it and show cause that he was shitty. Thats what I'm trying to say, the PBT is moot at this point, there's more to an OUI arrest than just a machine with a red number on it looking back at you.

Take a stab at the amount of drunks you've let bomb down the road.[/quote]

Sure, I'll take a stab, in fact I'll give an exact amount: drum roll please......... NONE!!

If I DETERMINED they were operating IMPAIRED then they would be sitting in the back seat of my cruiser.

Maybe I'm not wording myself properly, I never did say I was a poet. What I'm trying to get at is that there is more to an OUI arrest than stopping a car and smelling booze and saying the guy is driving drunk. Remember, you have to prove that the alcohol he consumed is impairing his ability to drive not just that he drove after drinking two beers so he must be driving drunk. Is that any clearer?


Posted by: bbelichick

Quote:
Originally Posted by Q5POS
Sure, I'll take a stab, in fact I'll give an exact amount: drum roll please......... NONE!!

If I DETERMINED they were operating IMPAIRED then they would be sitting in the back seat of my cruiser.

Maybe I'm not wording myself properly, I never did say I was a poet. What I'm trying to get at is that there is more to an OUI arrest than stopping a car and smelling booze and saying the guy is driving drunk. Remember, you have to prove that the alcohol he consumed is impairing his ability to drive not just that he drove after drinking two beers so he must be driving drunk. Is that any clearer?
If you are claiming you've never had one blow under a .15, then you have to be letting some that are .10 and up slide.


Posted by: Q5POS

I don't know if its me or what but everytime I reply to a post I have to relog in after I finish it and try to submit and then it erases the entire message without posting it. This is the second time I've tried responding to you Coach Belichick but it keeps screwing with me. I'm starting to get aggravated and I don't feel like retyping my responses because it they were good sized ones. But I will get back to you in a little bit after I cool down.


Posted by: MM1799

When I am writing a large response I just copy/paste from Word.


Posted by: Edmizer1

A PBT could technically get introduced as evidence. I was told that a defense attorney would have to challenge the probable cause for arrest after which it could be entered. Probably will never see it happen in career.


Posted by: Q5POS

In response to Coach Belichicks comment about letting some slide under .15. Never, I have had numerous guys refuse the FST's altogether as well as the BT, and just by looking at them alone they could've been around a .08 if I had to guess, maybe. As a result I had to base my decision on what I observed as far as driving ability, conversation with the driver, my training, prior experience with OUI arrests, etc. He could've been a .10 or he could've been lower or higher, we'll never know cause he refused all the tests. If they want to play the game and don't want to make an attempt at proving my assumption wrong, then they'r going to be sitting in the back seat of my cruiser. Don't get me wrong, I'll always be safe then sorry. I'm not going to let a driver drive down the road because he doesn't look drunk enough. I don't care if the guy was .02, if his ability to operate a motor vehicle is impaired, I'm locking him up. I'm not ashamed to admit that I have kicked loose more people than I can count. Not because they were't "drunk enough" but because I DETERMINED (big word) they're ability to operate a motor vehicle wasn't impaired. Have you noticed that keep using the word impaired?

IMPAIRED: functioning poorly or inadequately

I got an example for you Coach. Lets say you stop a car because he rolled through a stop sign. You walk up to the car, have conversation with the driver, his eyes arent bloodshot, he speaks well, not slurred, his reactions and motor skills are fine, has a slight odor of alcohol on his breath because he just came from a dinner date and had a few glasses of wine. You get him out, he performs and passes all you FST's with no problem, he's steady on his feet, etc. As a last shot you give him a PBT and he blows a .08. Do you arrest him? Remember the key word for today is IMPAIRED.


Posted by: bbelichick

Quote:
Originally Posted by Q5POS
IMPAIRED: functioning poorly or inadequately

I got an example for you Coach. Lets say you stop a car because he rolled through a stop sign. You walk up to the car, have conversation with the driver, his eyes arent bloodshot, he speaks well, not slurred, his reactions and motor skills are fine, has a slight odor of alcohol on his breath because he just came from a dinner date and had a few glasses of wine. You get him out, he performs and passes all you FST's with no problem, he's steady on his feet, etc. As a last shot you give him a PBT and he blows a .08. Do you arrest him? Remember the key word for today is IMPAIRED.
Help me out here...point out the word "impaired" in the statute:

Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances...

You determine if he is Under the Influence, not "impaired". It is now considered Prima Facie that .08 is under the influence.

I have yet to have a guy blow a .08 on the PBT that I did not get indicators from on the FST's...following instructions, slurring, HGN (!!) etc.

Who the h*ll taught the OUI portion of the 75th RTT anyway??


Posted by: j809

HGN is a go-go all the time. You got HGN, you go bye bye.


Posted by: pablo

two weeks ago we had a walking talking 4.0. Guy blew 4.0 and 4.2 on the BT. appeared borderline on all tests except HGN and PBT. Never in 17 years have I ever seen anybody with that high a reading function so well. This guy was a true pro. THis guy wasnt even stopped for poor operation ,a deefect got him stopped.!!!


Posted by: j809

You mean a .40. A 4.0 would be long dead.


Posted by: jackryan

OUI alcohol vs. OUI drugs.....after you have given the Standardized FST's and they failed, a PBT certainly helps get you thinking OUI drugs.


Posted by: Irish Wampanoag

If you use a PBT make sure you dont tell or show the results to the offender!


Posted by: Q5POS

Hey Pablo,

If and when that case goes to court, which probably won't be a for a while, get back to me with the result. I'm curious as to how it pans especially since he did well with the FST's and the only real determining factor was the PBT. And if the PBT gets thrown out, then...the guy might have a case. Especially since he only got pulled over for defective equipment. Let me know...


Posted by: topcop14

OUI cases are a crapshoot. I have gone to court with slam-dunk cases only to get an NG. I have also gone with cases that were not so good and have gotten a guilty. Ya I like to get convictions, and yes I get pissed when some shit bag lawyer gets his client off. However, in the end if I have PC then you are under arrest and at the least I get four hours of OT and the drunk has to pay out of his ass for a lawyer. I wish my department would buy PBTs but instead we have a radar trailer, a radar dolly a radar that straps to utility poles and a radar that attaches to a cruiser that is left parked on the side of the road only to have it hub caps stolen.
I have made approximately 100 OUIs in my career and I have had 2 people pass the BATS. Both failed ALL FSTs but I didn’t have a PBT so they were hooked. If I had a PBT maybe they would have been charged OUI drugs or maybe they would have been sent on their way.


Posted by: krypto98

"I have yet to have a guy blow a .08 on the PBT that I did not get indicators from on the FST's...following instructions, slurring, HGN (!!) etc."

To add to bbelichicks point I think you have to use the same process like speeding. Your observations are supposed to be the first indicator not the display on your RADAR or LIDAR unit. I would hope we would want people to belive our observations more than the display on on some machine.


Posted by: Rock

Quote:
Originally Posted by Q5POS
Hey Pablo,

If and when that case goes to court, which probably won't be a for a while, get back to me with the result. I'm curious as to how it pans especially since he did well with the FST's and the only real determining factor was the PBT. And if the PBT gets thrown out, then...the guy might have a case. Especially since he only got pulled over for defective equipment. Let me know...
Doen't matter. Every court and every judge is different with how they decide on cases. Like Topcop14 said, it's a crap shoot. I had an OUI drugs with the guy blowing a .05. The court threw out the drug charge and made it an OUI alcohol. The jury then found him guilty. You never know.




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