The Preliminary Breath Test (PBT) is a portable breath testing device that measures alcohol through a fuel cell. It is used to measure breath alcohol on roadside traffic stops, but it is not considered particularly accurate. Under the drunk driving statutes, a PBT is admissible in court except for a limited number of purposes. This test is not considered to be an "evidential" breath test, and the penalty for refusing this test is a) a civil infraction that results in fines only (there is no license penalty, and there is no abstract generated with the secretary of state), and b) the officer may or may not arrest the motorist based upon the other factors determined through the investigation.
If a police officer has "reasonable cause" to believe that a driver may be intoxicated, the officer may request that a motorist submit to a preliminary breath test. The police officer may arrest the driver based in whole or in part by the results of a preliminary chemical breath analysis. We have had clients who have passed all the field sobriety tests who were arrested based on the PBT, so you should carefully consider whether you should submit to a PBT. We also receive occasional calls from motorists who were released after refusing the PBT, although these cases appear to be rare. Given that 1) the device is not considered accurate and 2) a police officer can arrest a driver based upon the device's results, we do not recommend that a drinking driver submit to a PBT, but there is a financial penalty for refusing the test. Again, it is a civil infraction for a motorist to refuse a preliminary breath test, with fines up to $200.00.Note: it is a misdemeanor under Michigan's drunk driving laws for a commercial driver to refuse a PBT, even if the commercial driver is below the legal limit, which is 0.04 under Michigan law and 0.02 under DOT regulations.
Under Michigan Compiled Laws, MCL 257.625a(2)(b), "The results of a preliminary chemical breath analysis are admissible in a criminal prosecution for a crime enumerated in section 625c(1) or in an administrative hearing for 1 or more of the following purposes:
(i) To assist the court or hearing officer in determining a challenge to the validity of an arrest. This subparagraph does not limit the introduction of other competent evidence offered to establish the validity of an arrest.
(ii) As evidence of the defendant's breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant's breath alcohol content was higher at the time of the charged offense than when a chemical test was administered under subsection (6).
(iii) As evidence of the defendant's breath alcohol content, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant's breath alcohol content was lower at the time of the charged offense than when a chemical test was administered under subsection (6)."
In plain English, this means that the PBT can be used to make an arrest, even if the motorist passes all other field sobriety tests. It also means that the prosecutor can use the results of the PBT if the accused argues at trial that the breath concentration was lower at the time of driving when the PBT result is higher than the evidential test results determined later at the police station or hospital.
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