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I have been asked to poll the TDCAA members who use the forum about their views on how and when the PBT should be used in a DWI investigation, and what problems PBT use presents for prosectuors during the DWI trial. I had a phone call from a DA asking if DPS would change how it uses the PBT. The Highway Patrol training committee is meeting on the 21st and the Captains meet on the 22nd, so I need your responses by 8:00 a.m. on 9/20.
If you don't want to post them here, you can e-mail me directly at email@example.com
Thanks for your input.
Senior Assistant General Counsel
Texas Department of Public Safety
I would recommend using it only when the weather (too cold, rainy, windy, etc.) or some physical disability doesn't permit much other testing. It seems that when the PBT is used, the likelihood of actually getting an admissible B/T goes down significantly. The actual B/T is what we're really wanting anyway, so it should be our testing focus.
I would love to see a study on the effect of PBTs. DPS should pick a few similar counties (similar in terms of size, demographics and current BT refusal rate). In some of the counties use the PBT and in some not (or only in very limited circumstances). Leave everything else the same and see if we can get some indication on the effect on the BTR rate. If the effect is negligible, continue to use it since I let my juries know the defendant flunked it without revealing the reading. If we can get more BTs, junk it.
I have seen some troopers who administer the PBT in place of some field sobriety testing. This may provide the trooper with the answer he is looking for, but it drastically reduces the amount of evidence we have in that particular case.
I have also seen defendants get into an argument with the trooper when asked to take a breath test at the jail. The defendant contends that he took the breath test when the trooper administered the PBT in the field. The end result is a intox refusal case.
Any officer who uses a PBT needs to be aware of the strong and weak points of this TOOL.
I've had some troopers turn the PBT towards the camera and show the reading to the video tape. Well, now we've got to redact that out. Redacting a video tape always makes the jury wonder what the State is hiding. I don't like that at all.
Also, the trooper may read off the results to the defendant, or quietly to him/her self so that the audio of the video tape picks it up. Again, we have to bleep that out.
We did have one officer use the PBT after the FSTs and say to his partner,
"Yup, thought so."
"MmmHmm. Call a wrecker."
That, I didn't mind at all.
I purchased most of our PBTs and wish I hadn't. I have seen a dramatic rise in BTRs and can only seem to attribute it to the use of PBTs. I think they may still be useful for Minor Consuming and Minor DUI cases but I have advised my troops to stop using them in DWIs. I think that they could be made very useful if they could be "certified" by the director and made admissible in place of regular BT but that may not be possible.
I would prefer they only use them when they are confident the stop will only result in a DUI ticket. My long standing Bias against PBT use is based on my belief that it makes the suspect less likely to give a breath sample at the Station.
If the PBT is only used in situations where FST's are impractical (disability, weather conditions) or where there are less than the opimal number of clues on the FST's, then go ahead.
The problem is when it turns from being used as a tool to being used as a crutch. The psychology of the BTR's after taking the PBT is easy to see....why are they going to blow at the station if they just got hooked up and had their car towed when they blew on the PBT 45 minutes earlier? In their minds, bad things happen to them when they blow.
Of course, many people won't blow at the station, the PBT notwithstanding....but we're all for anything to increase the odds of them providing an ADMISSIBLE breath test. And if that means putting the PBT away,save for certain circumstances, then so be it.
I agree with the rest. PBTs should only be used under very limited circumstances. I believe they do have an effect on BTRs. At the very least, DPS should do as wckirk suggests. I, too, hate it when a trooper shows the results on the video. Rarely, if ever, does something good for prosecution come from a PBT.
Keep the PBT, but...
Make BT at station mandatory
Can I buy a vowel?
Allow me to jump on the dog-pile. PBT's are counter-productive. A defendant who blows over the limit at the side of the road is very unlikely to want to roll the dice again when he reaches the jail. Use 'em on public intoxication and other similar arrests, but they have no place in a DWI prosecution.
On the one hand, PBT gadgets are cool, hip, and high tech. My only complaint with them is that I have found that they greatly increase the odds that the defendant will refuse the only breath test that counts in court, since it gives him a heads up as to what his real BT score will probably be. And a BTR significantly harms our ability to get a conviction.
So we are stuck with this dilema: should something as cool as a PBT gadget not be used, simply because it is counter-productive to enforcing the DWI laws?
I will leave the answer to that question to better minds than my own.
Thanks to those who have posted in response to my question or e-mailed me directly. This is your chance to get your views before the Highway Patrol Training Committee. They will be evaluating use of PBTs at my request. Your responses will be what they consider.
Keep 'em coming!
The results are not admissible, and they result in more breath test refusals. Either improve the technology to get them certified and admissible or throw them away.
I think that PBTs lead to BTR refusals in many DWI cases for the reasons stated by my colleagues. I have never heard anyone argue that the refusal rate is unaffected.
I do not think PBTs are helpful to the prosecution in virtually any case simply because they are inadmissible. In the "close cases" where a suspect does so well on the other FSTs that the officer feels he needs more to make an arrest, we get an inadmissible PBT and an arrest for DWI where the admissible FSTs are so weak that even the arresting officer was not convinced of the suspect's guilt.
PBTs have great potential that can only be realized by improving them to the point they are admissible. Until then, they continue to be detrimental to prosecution, not beneficial.
And I, too, must confess to having purchased most of the PBTs in our county years ago!
Let's see. I blew at the side of the road, and I still got arrested. Lemme guess . . . I flunked! So why would I blow "for real" at the station?
PBT's have a significant chilling effect on all cooperation by the suspect later on. Even worse than the PBT chill is when the trooper tells his subject, on video, that he will be released if he "passes" the PBT. Isn't the officer admitting that the FST's aren't sufficient probable cause for a DWI arrest? Or, at least in the officer's mind, the FST's have not convinced him/her that the subject is intoxicated without some backup from his PBT. It got kind of scary in a recent case where the trooper, having arresting the driver for DWI, let the passenger drive off down the interstate with her kids in the vehicle after blowing a .073 on the PBT.
PBTs are a waste of time and money, until they're approved for evidentiary use. Some judges refuse to allow a jury to know one was even administered (because the subsequent arrest makes it so obvious that the person blew over) so I've had to redact big chunks of audio *and* video out of my tapes. Ugh. And it does seem that many officers hesitate to rely on the SFSTs if the crutch of a PBT is available.
I agree with Georgette. My Judge prohibits us from talking in any manner about the PBT in front of the jury, nor are we allowed to show that portion of the videotape to them. All of which makes for major headaches and much more busy work for us. I also agree that officers are prone to lean on the PBT as a crutch. Give me a good wobbly One Leg Stand, a defendant that stumbles all around on the Walk and Turn, who can't recite the alphabet or count backwards any day. My juries relate to that.
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