Can You Beat the PBT in a Kansas DUI Case?
Can the Preliminary Breath Test (PBT) be beat?
A preliminary breath test is the small portable breathalyzer that an officer keeps in the patrol vehicle. It is usually the test that an officer will request a person take after the officer has administered the Standard Field Sobriety Tests. The machine is supposed to determine the suspect’s blood alcohol level. There are many different preliminary breath test machines that are approved for use in Kansas, each machine has its own protocol for use and maintenance. Preliminary Breath Test results are not admissible in court to determine if a suspect is over the legal limit they are only able to be used to establish probable cause to arrest by an officer. Preliminary Breath Tests are not the same as an evidentiary breath test. Preliminary Breath tests do not have the same weight in court as the Intoxilyzer 8000 or the Intoxilyzer 9000.
How do you beat the Preliminary Breath Test?
The short answer is, you don’t need to. The PBT is not evidence in your criminal case. An officer will never get to tell a jury that you submitted to the PBT and the results were that you were over the legal limit. Preliminary Breath Test results are not admissible in court because the PBT is not accurate. Time after time judges have not allowed PBT results into evidence and there is ample case law to keep these results out.
What does an officer have to do before asking a suspect to take a preliminary breath test?
Before an officer can ask you to submit to a preliminary breath test the officer must have already developed reasonable suspicion that you are impaired. The officer must also give the suspect the following three warnings.
You do not have the right to consult with an attorney before taking the test.
Failure to give a sample or refusal of a PBT is an infraction.
You may be subject to further testing.
What happens if you refuse a Preliminary Breath Test?
Nothing will happen. It once was against the law to refuse a Preliminary Breath test in Kansas. It once was a citation punishable by a $300 fine. But that law has since been found unconstitutional. Absolutely nothing will happen to you as a punishment for refusing a PBT.
What Preliminary Breath Tests are approved in Kansas?
K.S.A. 65-1,107, authorizes the Kansas Department of Health and Environment with the authority to approve the preliminary breath tests devices that can be used by law enforcement. The list of approved devices are outlined in the Breath Alcohol Program Training Manual compiled and approved by the Kansas Department of Health and Environment.
Click the link below to view that manual for each of the last five years.
List of Preliminary Breath Test Devices that are currently approved.
Alcohol Countermeasure Systems (Alert J-5)
CMI Inc. (Intoxilyzer 300)
CMI Inc. (Intoxilyzer 400)
CMI Inc. (Intoxilyzer SD2)
CMI Inc. (Intoxilyzer SD5)
Drager (Alcotest 6510)
Drager (Alcotest 6810)
Drager (Breathalyzer 7410)
Guth (Wat 89EC-1)
Guth (Alcotector BAC 100)
Intoximeter (Alco-Sensor)
Intoximeter (Alco-Sensor Pass-Warn-Fail)
Intoximeter (Alco-Sensor III)
Intoximeter (Alco-Sensor Digital)
Intoximeter (Alco-Sensor IV Digital)
Intoximeter (Alco-Sensor IV Pass-Warn-Fail)
Intoximeter (Alco-Sensor FST)
Lifeloc (FC-10)
Lifeloc (FC-10 Plus)
Lifeloc (FC-20)
Lifeloc (PBA 3000)
Sound Off, Inc. (Alco Data)