Many good posts and cases about PBT use (and non-use), but threshold issue of warnings not covered. T.C 724.015 requires warnings prior to all specimens. Does that include requests for SFSTs and the "4th SFST"? If Officer hands PBT to suspect and says "Blow," is that a 4th Amendment violation?

SFSTs aren't a "specimen," and there are no consequences for refusing them, so no issue there.

I don't know if there are any administrative rules set down for a PBT or not, but since the results aren't admissible anyway I'm not sure it matters. TTC 724 is about the process for getting admissible breath and blood samples.

If the only probable cause for the arrest was the PBT result, which is going to be excluded anyway, then my guess is you don't have any facts left to prosecute on.

Thanks Jon.
I have other PC, but still wonder about 4th Amend. re failure to warn and request the PBT. Watson, 945 S.W.2d 262 (Houston [1]) says PBT and Intox. breath are respectively prearrest and postarrest, but both are "samples." Is taking a sample, any sample, a seizure? Maybe not an unreasonable seizure requiring consent or warrant? This is a nit until your officer forgets to ask and the constitutional error is per se harmful.

I'm probably not understanding your question, but Watson is tricky because it's a civil ruling on criminal law, so there's problems from the outset. But it also really only stands for the idea that a specimen under 724 is only a post-arrest specimen that must be taken on the Intoxilyzer.

The warnings mentioned in this ruling are the statutory warnings in the DIC 24. They're not like Miranda warnings; they're something we require here because you're subject to an ALR if you refuse.

So not warning someone before you give them a PBT doesn't end up becoming an issue one way or another because 1) there are no consequences to refusing a PBT, 2) if you give a PBT sample, you've done it voluntarily so you have a consent exception to any conceivable 4th Amendemnt issue and 3) it's all a moot point because you can't use any evidence obtained by the PBT at trial anyway. So even though it's legal to ask for one, you're in the same position as if it were illegal because you can't use the results.

Right on all counts, but regardless of no consequences of refusing a PBT, there still seems to be room for Suspect to claim that the order (not request) to give a roadside breath sample violates the 4th even though an order to perform SFSTs may not. Is the ultimate counter argument that with reasonable suspicion an officer's order for a pre-arrest detainee to breathe into a straw is no different from ordering him to breathe in the officer's face?