Has anyone utilized a PBT in a DWI trial? If so, how did you utilize it and was it succesful. We are trying to figure out how to best utilize the PBT's that DPS is using as part of the field sobriety tests.
PBT's, in my opinion, are a waste of good time and money until Texas makes it a crime for a defendant to refuse to provide a blood or breath sample upon demand of an officer. PBT's are not going to be admissible at trial and just signal to the defendant a reason to refuse the real test. It's time to abolish the administrative license revocation process, pass a law requiring submission to breath tests, and make it a crime to refuse (equal to the offense that could be charged). Are you with me?
Check out Fernandez v. State, 915 S.W. 2d 572(Tex.App.-San Antonio 1996, no pet.). Fernandez seems to indicate that a PBT is just another FST. The actual reading is not admissible, however.
From a practical stand point, John is correct. It has been our experience that once the defendant learns the result of the PBT, he almost always refuses.
Sure you can use them, unless your judge is crazy which is usually the case. You can have the trooper explain what the PBT does, that the Defendant blew into it, and that the PBT was "positive for the presence of alcohol". You cannot go into any numerical result and the numberical result cannot be on video. The Defendant blowing into the PBT can be on video. Then after all that I would ask: Trooper, did the results of the PBT confirm to you that the Defendant was intoxicated?
How is this any better (in terms of the type of evidence needed to get a conviction) than having the officer testify he smelled alcohol on the defendant's breath?
We had a Judge that was particularly sensitive to DWI defendants, and didn't like the PBT. Rather than asking specifically about the result of the PBT, we'd ask whether a fourth FST was performed, and what that FST was. Then we'd ask the general question: Based on all four of the FSTs administered, did you draw any conclusions... letting the jury draw their own conclusions about that test.
However, I'm not sure it helped or hurt.
I tend to agree with John. On balance, I think these things are probably more harmful than helpful. The result isn't admissible and it just signals the guy to refuse the real test. Had a defense attorney make a pretty impressive big deal over this at trial once ("they are saying he refused the test ... no he took the test, and still got arrested ... why would he take another one ... how do we know what this thing said ... we can't test it ... they threw it away without showing it to anyone" and so on). Didn't work, but it sounded good. I think it is time to require the test or create a statute making it the same level of offense to refuse. Let's do it.
I purchased the original PBTs for the Troopers but now regret getting them. I have recently ask the troopers to stop using them for DWI cases after watching refusals skyrocket. The increase in refusals are, I believe, due to the use of PBTs. They still use them for "Minor DUI" and PI. I agree that we must make BTR a crime, wipe out ALR and, of course, fix the extrapolation problem with a two hour presumption.
As for how we have used PBTs in trial, we treat then like any other FST or, as said above, a fourth FST. We particularly looked at the case law concerning HGN as a guide on how to use PBT results. That is, the test indicated intoxication without giving an exact "level" of intoxication.
If you really want to get the DWI laws changed, we need to start doing public interviews about this right now. To see a start, go to: KXAN web site.
I agree with Mr. Bradley regarding the unnecessary trade-offs associated with using the PBT during a DWI stop/investigation. They cause way more problems than they solve and lead to an increased number of refusals in the intoxilyzer room. However, I believe your question focused more on what to do with it now that you are stuck having to deal with it during trial.
In my experience, I found the best way to utilize the PBT is to present it as a tool, or safegaurd, that the officer uses to confirm his suspicions as he progresses with the investigation. Don't ever try to present it as a scientific instrument. I have had numerous jurors tell me that they thought it was a good thing that the officer was "confirming his observations" as he went along. I never presented it as a FST. After all, since you cannot present quantified results from using the PBT how does it show whether or not the defendant is sober? As far as you are concerned, it only tests for the presence of alocohol.
You can also hold off presenting evidence of the PBT until after your officer is cross-examined then use it as supporting evidence or confirmation that your officer really did smell the odor of an alcoholic berevage on the defendant and it came from his breath and not from his clothes etc.
Utimately, how you choose to present this kind of evidence is dependant on how good your officer is and what method of cross-examination the particular defense attorney uses.
Mito: good to see you on this forum. E-mail me your address, info, etc. (firstname.lastname@example.org). Frank
I agree that a PBT is a waste of time and money. Every DPS trooper who's used one assures me s/he never reveals the results to the Defendant. Oddly enough, I get a few cases where the Defendant blows into the PBT and then continues on to central booking and blows there, too. But often enough it seems they "use up" their willingness on the PBT leaving nothing for me to use in court.
In a pretrial we can admit them, even including the results. During trial though, my judge wouldn't allow mention of the things-- I had to turn the video monitor off and mute the audio portion of the tape when the PBT came up. Talk about a pain in the tookus when the dang trooper kept taunting the Defendant about it during the 30 minute ride back to jail. (and the Defendant's slurred responses were good enough to make it worthwhile to do the on-off-on-off game, but just barely.)
I agree that we end up with less admissible breath tests when officers use a PBT. The only use I really have for the things is when weather conditions really don't allow for much other sobriety testing, like when its pouring rain or 10 below outside. A creative trooper could use mental tests and other non-physical acuity exams (HGN, finger count, ABC's) that could be done in the car, but in such situations, your traditional physical tests are out or would be worthless by the time a defense attorney got started on cross. At least we could get a drunk off the streets for that night, even if our case might not be what we would like. I guess the real trick is getting the officers to limit their usage of the PBT to cases when other tests are not available.
Does anyone know of any coming technology that will eventually get a portable breath test to the point that it could pass Kelly and be admissible? I think this is just a matter of time.
I dont' think the PBT will ever be admissible. The distinguishing characteristics in my mind are: the regular calibration of the machine and the manner in which the machine is kept locked down. Your standard Intoxilyzer 5k is all set up with a nice metal hood and a big lock on it. Only authorized certified operators can even unlock the machine and access it. The security around the samples and the limited access keep allegations of tampering somewhat at bay.
Your pocket drunk straw that DPS carries around doesn't exactly have the "official testing device" appearance the Intox 5k does.
While the measuring samples and internal calibration of the I-5k could be aspects of a PBT, the standardization of those samples and the security measures to preserve those samples just don't seem too logically possible on a portable device.
As far as the refusal on the I-5k after the PBT, I wonder if it wouldn't help the situation for the officer to simply tell the drunk, "Let's double check your sobriety and see if you haven't sobered up some." or something to that effect.
Also, can PBT's be used in a retrograde Extrapolation fight? "He blew an .18 on the PBT and a .14 on the I-5k, which shows he's on his way down, not up!"?
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