Interviewer: What happens immediately after the field sobriety tests? Is the person usually arrested right after that?
Brian Sloan: Usually, it’s the cherry on top. The portable breath test is usually given at the end, after all the field sobriety tests are done. I imagine this is so the officer can say, “Well, the results proves impairment,” at least to the officer.
They can justify a failure on the field tests because this wasn’t just a balance issue, this wasn’t just someone with allergies but this does have to do with alcohol.
I think the reason is if they gave the portable breath test device at the beginning of the investigation, the person would find out the number or find out that they tested positive and, at that point, they would probably stop cooperating.
The officer wants the driver to perform the tests under the premise, “Show me that you’re not drunk. Show me that you’re fine to drive. Okay. Now that I’ve gotten all this evidence against you as to how you did on these field sobriety tests, now is to this cherry on top. Now let’s see what your blood alcohol content is. Okay. Now you’re under arrest.”
Interviewer: Will you see the readout on the preliminary breath test? Do they put that in the police report or they just put positive or not positive?
Brian Sloan: They do put the result in the police reports. They will put it in the admin per se implied consent, which is what they fill out to suspend someone’s license, under suspicion of DUI.
The Results of the Portable Breath Test Are Not Always Accurate
There’s no proof, though. The officer can write in there that the portable breath test showed a 0.123 blood-alcohol content, but there’s no picture taken, there’s nothing recorded on the device. The officer can basically make it up if he wanted to.
What I’ve been seeing more frequently, especially in the last couple of months, is how different the supposed portable breath test device result was from the actual blood test results. It used to be for years, that they were pretty close. Lately, they have been way off, both in being way too low and in being way too high or at least being way different from what the blood test results come back as.
Interviewer: Does that help you defend a person, to show that the device was not functioning properly?
Brian Sloan: It’s usually not a safe area to even try to bring in the portable breath test results. I swear I came across a case but I’ve been looking for it for years. I cannot seem to find it again. It said that defense counsel is allowed bring up a portable breath test result to show a difference between the actual blood test results and the portable breath test results.
The reason why the portable breath tests are not considered reliable is they do not go through the same monthly and quarterly testing procedures, to ensure its accuracy as a blood test or as an Intoxilyzer breath-testing device. Even if as defense counsel, I wanted to bring in the portable breath test, all the prosecutor has to comment on is that these are not considered reliable.
They do not go through the testing. It is just an estimate. It’s really only helpful for the officer to determine whether there was alcohol in his system or not.
