We're picking a jury right now, and the judge is mulling over whether to suppress the fact that defendant refused a portable breath test. Why does it matter, you ask? Well, this isn't her first rodeo, and on the side of the road she says, "I'll take any breath test you want," or something to that effect, followed by a PBT refusal and three deficient Intox5000 samples. Judge is going to make us prove that PBT is reliable and relevant for a BAC before we can admit her refusal. Right now our only argument is that SFST refusals can't be suppressed and neither should this be. Any caselaw on PBT admissibility (other than Fernandez - atty argues a PBT is different from a "passive alcohol sensor" and judge is buying it)? Anything? Thanks!

It would be helpful if you provided an e-mail address. Since you don't, I would say to be careful. Columbus v. Dials, Slip Copy, 2006 WL 164420 (Ohio Ct. App. January 24, 2006) (trial court erred in admitting refusal to submit to portal breath test). But cf. Sheppard v. Mississippi State Highway Patrol, 693 So.2d 1326 (Miss. 1997) (refusal to submit to portable breath test can support license suspension).

It seems reasonable to exclude under TEX. R. EVID. 401, 403 or 702, a refusal to submit to an unreliable test. You wouldn't expect a trial court to allow you to introduce a defendant's refusal to submit to a polygraph. Fry v. State, No. 11-03-00002-CR, 2004 WL 42570 at *2 (Tex.App. -- Eastland January 8, 2004, no pet.) (not designated for publication) ("When a witness testifies that a defendant refused to take a polygraph test, the trial court may be required to grant a mistrial.").

Proving that a PBT is reliable seems to be a daunting task. U.S. v. Van Hazel, 468 F.Supp.2d 792 (E.D.N.C. 2006).

You would be on stronger ground if the refusal was being offered on the issue of PC. United States v. Iron Cloud, 171 F.3d 587, 590 n.5 (8th Cir. 1999).

I would totally avoid the issue of the refusal of the PBT and stick with the deficient samples and the roadside agreement to take a breath test.

I'm not a prosecutor, but more a police legal advisor (with DPS) I tell my Troopers that a PBT test is nothing more than another FST--it is not considered an evidential device even though when properly calibrated, it is quite accurate. What a PBT does establish is the presence of alcohol, and can be helpful in those situations where the other FST results (other than the HGN) are not clear cut as is often the case with a long-time drinker. In other words, the PBT test goes solely to the officer's probable cause to arrest for driving while intoxicated. It cannot be used to establish the suspect's actual BAC at trial.

Take a look at Adams v. State, 156 S.W.3d 152 (Beaumont); Texas Dep't of Public Safety v. Bond, 955 S.W.2d 441 (Fort Worth); Tex. Dep't of Public Safety v. Watson, 954 S.W.2d 262 (Houston-First); and George v. State, 1999 Tex. App. LEXIS 738 (Houston-First). The court in George in particular did address the "expert" and "reliability" issues in connection with a PBT test.

I tell my Troopers to never testify to the actual reading, to show the reading to their in-car camera, or to repeat the reading for their body mike because that information is not admissible at trial.

Hope this helps.

Janette A

I would say, like you, the PBT is just another SFST. It seems quite relevant for a person to refuse a PBT at the scene. Since your defendant didn't blow into a PBT any arguments regarding deficient sample or results on the PBT don't matter. It's like saying do you want to attempt the walk-n-turn, one-leg, how 'bout a blow into the PBT.

Seems your judge ain't gonna cut you a break anyways. Is your PBT refusal on video??? Is that gonna get suppressed to? You should fight to argue that there is no legal reason to suppress an inaction on the defendant's part.

Then again, I just read David Curl's response above. Just forget the PBT and focus on the actual BT refusal!

We have relied on Fernandez v. State to admit a refusal before stating that the PBT is only one factor in determining intoxication. I just checked and I don't see any subsequent history on Fernandez. You might give it a try.


"We conclude that it was not error to admit evidence of the Passive Alcohol Sensor. The State did not attempt to use the PAS to establish a quantitative alcohol concentration factor, rather the PAS evidence was only introduced qualitatively as another indicator of intoxication relied on by the officer, much like the other field sobriety tests. Point of error number three is overruled."
Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.-San Antonio 1996, no pet.)

The judge went with us on the PBT (we never talk numbers, only presence of alcohol, and that was our only intent here), but suppressed on the stop, which was a big shock. She relied upon Curtis from Texarkana, which pretty much says that it doesn't matter if the cop thinks someone may be intoxicated, unless there's evidence that their weaving, even over the lines, was unsafe. Needless to say, that case is going to be frustrating for a long time. ...SIGH...

I noticed this comment about the PDR in the memory book for Matthew Paul:

One of the last petitions for discretionary review Matthew Paul wrote was in Curtis v. State, No. 1820-06, in which the lower court of appeals had ruled that officers did not have reasonable suspicion to stop a motorist who had swerved in
his lane of traffic. Jeff Van Horn brought smiles to the faces of those who attended Matthew�s funeral service in Ballinger on March 29 when he read the following excerpt from Matthew�s PDR:
�The Court of Appeals noted that there are any number of reasons why a person might swerve or weave out of his lane of traffic, including dropping a sandwich on the floor. It is true that a driver might weave once because he dropped his
sandwich on the floor of his vehicle. But three times? For a person to have that much trouble accomplishing the ordinary activity of feeding himself is alone evidence of significant impairment. One drop of a sandwich is understandable. Three unsuccessful attempts to move sandwich from hand to mouth is slapstick comedy.�

http://www.spa.state.tx.us/images/Memory%20Book.pdf
Pet granted March 21, 2007.

Looks like you may have a good State's appeal.