I was recently interviewed by a reporter from the Indianapolis Star as to my thoughts in regard to the recent arrest of a police officer. This particular police officer had been arrested for his second dui offense with case proceedings forthcoming. Her inquiry revolved initially around the circumstances of this arrest and whether a portable breath test on the scene is admissible in court. Further, from the tenor of her questioning she had been additionally attempting to uncover whether based upon the officer’s alleged action’s during the course of the arrest, this officer had any particularized knowledge as to how to deprive a future prosecutor needed evidence against him.
From what had been initially conveyed to me, this officer spent a great deal of effort refusing to submit to the portable breath test (PBT) that he had apparently been commanded to submit to. The reporter had wanted to know the significance of an individual’s refusal to submit to such a portable breath test during the course of a drunk driving investigation in Indiana.
Unlike a certified “chemical” breath test that is administered typically within a jail setting or police station, a portable breath test administered on location of a specific dui detention is not a test that is admissible within a court of law. Further, at the present time there is no tangible sanctions against one who refuses compliance with a police order to submit to such a test. If there is no rationale basis behind the submission to such an apparatus, what is the purpose behind it?
Although the result of a portable breath test is not admissible as evidence within a court of law during the course of a drunk driving prosecution, it is relevant as just one among many potential factors in providing “probable Cause” to a police officer. This probable cause will provide a legally sanctioned justification as to a determination of whether a suspect will be further detained and transported to a relevant facility for the purpose of submission to subsequent certified breath testing that is, in fact, admissible within a court of law.
As a result, a portable breath test result above the legal limit of .08, though not legally able to be used as evidence, is one of a litany of potential factors that can justify an officer’s course of conduct in the detention of one he or she believes has committed a drunk driving offense resulting in an actionable prosecution. In many instances where a traffic stop has been initiated not based upon an impairment type traffic offense such as broken tail light, suspended vehicle registration, etc, the results of a pbt test administered on the scene can take on an even heightened importance as to a later judicial determination of whether probable cause existed for the transport of the accused to submit to a certified breath test at an off site location.
Once probable cause has been determined that an individual’s actions at the scene indicate the presence of impairment, either through the performance of sobriety testing in the field and/or observed driving activity, legal requirements kick in to be imposed against one suspected of drunk driving as to non compliance with providing a breath test sample. It is at this point that unlike submission to a pbt test, a suspect’s failure to submit to a certified breath test will result in the automatic suspension of one’s driving privileges from between one and two years in addition to whatever court ordered license restrictions are later imposed. This suspension I might add will be legally required even if later found not guilty of a drunk driving offense unless later terminated by a presiding judge.
Many legal battles have been initiated in regard to the timing of a police officer’s implied consent advisals that are required to be read to one being asked to submit to the certified breath test. Unlike prior to a pbt test, these advisals to be read and understood prior to a certified test request are specifically required so to inform a potential suspected drunk driver of the potential repercussions of refusing to provide a certified breath test sample.
In some instances, negligent police officials will suggest that implied consent readings were communicated prior to a non admissible pbt test and not thereafter. In such instances, I have been able to thwart a dui prosecution by asserting that failure to submit to a portable breath test does not mandate the imposition of a mandatory license suspension and therefore does not require implied consent advisals at that point of an investigation.
In sum, there is no legal requirement in Indiana at this point for a suspected drunk driver to submit to a portable breath test (unlike a certified test). As a result, absent additional incriminating factors indicating potential impairment at the scene of a traffic stop, I cannot suggest that it is in one’s best legal interest to submit to such a non admissible test that will serve no better cause than to provide potential probable cause for a dui arrest.