We recently ran into a problem with a jury and the use of the PBT in a DWI case. The jury wanted to know the result, and of course we couldn't give it, and I think it was a factor in the acquittal. As a result, our DPS troopers have been going about the test in a different way. They tell the defendant what "fail" is (.08). Then they give the test, have the defendant look at the result, and ask the defendant whether he/she passed or failed. My concern is that this is equivalent to saying the defendant has a BAC over .08, and that it will be inadmissable. Any insight would be appreciated.

I love your idea. However, I think that the inference is so obvious that most judges would (and probably should under current law) keep it out. I think the best way that you can get away with doing it that is within the law is to describe the other FST's and then the PBT and ask the officer, "After seeing the defendant's performance on the other sobriety tests and the results of your preliminary breath test, did you arrest the defendant?" In other words, try to place the proximity of the arrest as close as possible to the officer viewing the PBT test results (which, of course, the jury won't hear, except to the extent that it showed the presence of alcohol in the defendant's system) and hope that the jury makes the inference about the PBT result.

No offense, but I think it's a bad idea to even let the defendant know that he failed the portable breath test. (And how many people had to pause a while before you figured out what "PBT" meant?) My experience is that once they know they failed the portable, they won't blow in the real, admissible instrument.

I agree with Jane. This is a good example of how the different perspectives can cause different decisions.

Law enforcement wants to make an arrest. Prosecutors want to obtain a convincing guilty verdict.

The use of an inadmissible test on the road, makes it far less likely that a defendant will provide a sample at the station. Unless we make the collection of a sample mandatory at the station, the PBT is counterproductive. It also makes it far less likely the officer will collect the other types of evidence that might be more convincing to a jury (admissions and FST's).

By the way, did anyone ask a prosecutor whether it was a good idea to use a PBT before they starting using it?

I understand why the jury wanted to know the result of the PBT test, but of course current case law is that a PBT is just another field sobriety test and not a qualitative measurement of the actor's blood alcohol level. As most of you know by now, I am a Senior Assistant General Counsel for DPS and don't do criminal trial work. I have been telling my troopers who have asked about testifying to the actual reading (they are quite creative about getting it on the tape!) to testily along the line that results of the PBT were consistent with the other indicators of intoxication observed by the trooper and the results of the other field sobriety tests he or she administered.