Did I Provide a Breath Sample When I was Arrested for DWI or Not?!

May 16, 2016

“I blew into some sort of device on the night I was arrested!  I know I did!  I’m positive of it!  I don’t care how drunk, er, um, I mean, tired I was!  I know I blew!  So why did the cop say I didn’t?!”

I’ve heard that too many times.  And then begins the long and often confusing explanation of the difference between the pre-screen breath test (“PBT”) and the chemical test.  It’s perfectly normal to not understand the difference.  Hell, there are a few police officers out there who don’t even know the difference (I’m dealing with a few right now, as a matter of fact; and that is terrifying by the way, but a topic for another day, on perhaps a less public forum……moving on!)

If you do everything the arresting officers asks of you on the night of your DWI stop/arrest, you will have blown into two (2) different and separate devices.  The first device should have been a little box with a small plastic tube snapped into place by the officer (hopefully after he removed it from its sanitary wrapping) while standing on the side of the road.  This is the Pre-screen Breath Test (“PBT,” or often times referred to as the Alco-Sensor).  The PBT is administered in combination with the field sobriety tests as a way of establishing probable cause to arrest for DWI, and is generally the last test you’ll take before being cuffed.  (Note: there is no actual requirement that the PBT be administered last, but a DWI defense attorney worth his salt might be able to score a point or two for your side if it wasn’t.)

And despite what you’ll hear to the contrary (typically from law enforcement personnel), most PBTs can detect an actual BAC value and display it for the officer.  A lot of law enforcement officers like to tell people that a PBT only registers a “positive or negative”, but I don’t think that’s been the case for some time now.  In fact, most of the DWI paperwork I see these days all too often includes the actual BAC number from the PBT.  That being said, there are still a few (both devices and officers) that will still read just “+” or “-“, but it doesn’t really matter either way.  Anything “+” or greater than .08 (and in some case, .05) is going to get you arrested.  As I mentioned, the PBT is often administered last to confirm the arresting officer’s suspicion that you were driving while impaired or intoxicated, and after your epic performance on the standardized field sobriety tests (“SFSTs) all but locks it up; it’s just another – and typically the final – nail in your coffin.

That’s really where the value of the PBT ends, though.  For various long-winded and insanely boring reasons, PBT results are in most cases inadmissible at a DWI trial.  Of course, the DA is still going to consider what the officer says the PBT read when making a plea offer (I phrase it that way since rarely anyone BUT the arresting officer actually sees what the PBT reads), but a jury should never hear anything about it if your case actually makes it all the way to trial.

The second and significantly more important machine that you will have blown into is the chemical test machine at the police station (generally either an Intoxilyzer, Datamaster or Drager). This is a much larger machine, with a long hose, that requires a much larger sample of your breath – so large, in fact, some people are physically unable to provide the required sample. (The chemical test machine and the PBT look absolutely nothing alike.  So in all fairness, if you were really as sober as you claim you were, you probably would have remembered taking both tests; at least the second one. BUT! It is a very stressful situation and I’ve known people to stammer and stutter over their birthdays when being put through the DWI paces.)

The result of a chemical test is really what will do you in or help you out. A successful sample on this machine will provide a very specific BAC value for the operator, and it will even print out your test results to put in the file.  Since this test is administered at the police station, however, a decent amount of time typically elapses between the time your vehicle was stopped (i.e., when you were actually “operating” a vehicle, the illegal part) and the time the test is administered.  This can provide some fertile ground for your defense attorney at a pre-trial hearing or at trial itself.  There could also be issues with the chemical test machine itsself, the sample you provided, the calibration of the machine, how the test was administered (the officer will typically be certified in the use of the machine, so it can get a little complicated) or any other number of issues that may help your attorney get those results suppressed.  And that’s really strategy #1:get those chemical test results tossed! Because unlike the PBT, the results of a properly administered and operational chemical test are admissible at trial.  And juries and judges love that sh*t! Takes the decision-making pressure right off of them: “A machine said the BAC was such and such?! Well then! It MUST be accurate! Guilty!”  Avoid that trap and you’re sitting in a much better position from a defense perspective, for both plea bargaining purposes and trial.

If you have been charged with DWAI, DWI, Aggravated DWI or any other alcohol related driving offense, you need an experienced DWI defense attorney who knows how to challenge the results of the chemical test.  If your BAC is relatively low, you may have a real shot in avoiding a misdemeanor conviction altogether. If it’s high, you need someone on your side who can poke as any holes in that evidence as possible to show the machine was just plain wrong.  Long story short, you need the DWI defense attorneys of Catalano & Carpenter LLP. Call (845) 454-1919 today to schedule a Free DWI Consultation, or email Todd Carpenter directly at Todd@CatalanoCarpenter.com.  The consequences of a DWI conviction are too serious to trust your case to just anyone.