Note: This article by Fairfax DWI Lawyer Paul McGlone was originally posted elsewhere in April, 2008.
This article is about an issue that I have wanted to take to the Virginia Court of Appeals for review. I thought I had a perfect case, but now a Circuit Court Judge has dismissed my case so there is nothing to appeal!
Several years ago, I noticed that many of my Fairfax, Virginia, DUI cases were being won or lost depending on how the Judge and/or the Police handled the use of Preliminary Breath Tests. Just last week, I had another case, in Fairfax County Circuit Court, where the Judge dismissed the case based on how the Cop handled the PBT.
This test, called "the PBT", or, as I call it, "the Portable Breath Test", is used at the scene of an arrest to help the officer justify his decision for "probable cause" for the arrest. The device commonly used in Fairfax is called an Alcosensor IV made by Intoximeters, Inc. This is not the same as the final breath test, which is usually given down at the jail on a machine called "Intoxilyzer 5000".
Virginia law has a lengthy section that outlines the use of the PBT and whether it can be used at trial. First, the law passed by the Virginia State Legislature says that the results of the PBT cannot be used against us in a prosecution under the DUI laws. Then, there is caselaw that says that the results of the PBT can be used as evidence against us under certain circumstances, particularly when the Defense raises the issue of probable cause.
So, now, we have some Judges who will admit the PBT results and come who don't. If they admit the PBT results, they are almost certainly going to make a finding of probable cause any time there is a PBT result of .08 or more. In other words, if there is a PBT, we probably lose the probable cause motion every time. Without a PBT result, probable cause has to be judged based on the officer's testimony as to the appearance of the defendant, including his statements, driving, and performance on various roadside tests-- the so-called "field sobriety tests".
In my case last week, we were fortunate enough to have a video which showed my client doing pretty well on the sobriety tests up to the point where the officer offered him the PBT. In offering the PBT, we then heard the officer, on tape, saying "this is not admissible in court". The officer didn't make any distinction, as in the caselaw, between "a prosecution" and a "probable cause hearing", and the Circuit Court Judge refused to allow the PBT result in evidence.
We cut off the Video at that point, and the Judge had to make his ruling on Probable cause based on the remaining evidence. Without the PBT result, the Judge ruled in our favor on the probable cause issue, and dismissed the case. The case never proceeded to the point where the final breath test of .11 could be offered into evidence, and the case was dismissed in spite of the fact that my client blew a .11 on his final breath test.