Questions about PBTs

[technicor]

Delaware
I went out to the bars like any other single red-blooded 27 year old back for the Thanksgiving holiday. At about 4:45, a buddy and I were faced with the prospect of a taxi (about $40) or me driving. I felt sober and had not drank in 4 hours so I chose to drive.
I plan to drive about 10 miles to drop off my friend and then planned on driving home about 3 miles after that. About 8 miles into the trip, I get pulled over at about 4:30 A.M. PC for the traffic stop was "swerving", which is complete bull****. The cop had tailed me for several miles waiting for PC and finally pulled me over literally 500 ft from the PA state border where he would otherwise lose jurisdiction.
Anyway, I had an important choice. Keep in mind I wouldn't lose my job for a DUI conviction or be forced into rehab or whatever big corps do to handle DUIs;

1) Refuse the breathalyzer, take it to trial or maybe get the case dropped.
Pros: Have a great case on the merits w/o a PBT reading. I did well on the dumb tests and was very calm and collected. The prosecutor would have a very difficult case and my family has a great defense lawyer on retainter. Cons: At least $5k for the trial, I would still have an arrest record for the DUI, and my license suspension from the DMV is essentially the same whether I am found criminally liable or not. I was also hiding some contraband in the car that would have made this a much bigger deal if found, and I suspect the cop would have done a more vigilant search if I refused the PBT.

2) Take the PBT and hope I blow under a .08.
I figured I had about 10 drinks starting at 7 P.M. I did the math in my head and figured it was a close gamble as drinks metabolize 1 drink/hr over 10 hrs. I def. wouldn't have PBTed (or driven) if I felt drunk.
Pros: If I blow under .08, I get a traffic ticket and thats it. It would be a 2nd DUI in Delaware which is mandatory time so avoiding it would be crucial. I drive home and its a couple of hundred dollar fine, no license issues and i chalk it up as a ****ty night.
Cons: If I blow over, trial is much, much more difficul; prosecutors have a ton more leverage and I can basically only attack probable cause.

So I chose to blow. After doing the different physical tests I blew a .093, about 15% higher than the cutoff (.08). 2 years ago I would have been fine as it was a .1 state. Bummer. Next step is to take me to the station and blow again.

Since my body was in the process of eliminating the alcohol (I hadn't had a drink in 4 hours) and time was obviously valuable, I did everything possible to delay the second PBT (got car towed even though I didn't need too, complained of a "medical issue", etc.) so i can metabolize to under the .08. I read somewhere that the human body metabolizes .03 of BAC/hr. So I should be ok, right? The cop himself said he wouldn't prosecute (even though he could) if I didn't clear .08 at the station.

So approximately an hour after the original PBT, I get ready to blow again. My mouth was extremely dry at this point and I was concerned that it could affect my PBT result. I asked the officer if I could go to the water fountain and he wouldn't let me. The cop also said drinking water would actually work against me, so I blew. It read .105!!!! My BAC increased 15% in an hour!!!! Again, I can't stress enough that I had not had a drink in over 5 hours by the time I took the second PBT.

1) How is this possible that my BAC jumped .0015? It should have swung the other way and then I would have been under .08. I hadn't consumed a drink in 4 hours. What is the difference between the field PBT and the station PBT? Is one or the other more accurate?

2) Could my dry mouth have anything to do with the 2nd PBT? Does the officer have an obligation to let me wash my mouth out?

3) I will almost certainly file a suppression motion because I don't think the guy had PC to pull me over (its pretty obvious to me he pulled us over because it was a holiday weekend and its two young guys driving at 445 A.M). Generally speaking, a hearing on suppression motions is a cop testifying and the motion being denied. However, in this case, the trooper cam should be discoverable, right? The state cant withhold that video can they? I think the video could be crucial leverage.

4) .08 is a presumptive DUI right? AKA, I could in theory plead not guilty, go to trial, and admit a .09 but non-impairment?

I would however really appreciate any feedback from 1) law enforcement personnel familiar with this issue 2)DUI attorneys, 3) people who have had a similar experience with strange PBT results and 4) people who have gone to trial and have litigated (or appealed) similar issues.

I've posted this other places and all I got was trolling and non-answers. I'm hoping you guys can help! I am going to have an ex-parte meeting with the cop soon and knowledge is power when negotiating these things.

I would love any non-judgemental, objective analysis of my questions. Thanks.

 

[swalsh411]

Being over the limit is per-se intoxication so trying to argue you were over the limit but not imparied is a non-starter.

The roadside breath test will likely not be used as evidence against you. It was the probable cause to arrest you and make you take the second test, which will be used as evidence. So I don't see how the descrepancy is relevant.

It will be your word against the cop as to whether or not you were swerving. The fact that you were legally drunk doesn't help your credibility.

I am not aware of any requirement to allow you a drink of water.

I am going to have an ex-parte meeting with the cop soon and knowledge is power when negotiating these things.

The fact that you are asking these questions on an internet message board means you are not qualified to handle this on your own. Get an attorney. Do not talk to the police. Do not talk to the police. Do not talk to the police.

 

[CdwJava]

I went out to the bars like any other single red-blooded 27 year old back for the Thanksgiving holiday.

When I was single and 27 I did not go out to bars on a Thanksgiving Holiday, so let us be clear that this is not some sort of commonly held tradition anywhere.

I plan to drive about 10 miles to drop off my friend and then planned on driving home about 3 miles after that. About 8 miles into the trip, I get pulled over at about 4:30 A.M. PC for the traffic stop was "swerving", which is complete bull****.

Okay. So, you're saying the officer simply saw your car and pulled you over for no reason and managed to get lucky enough to find a person who had been drinking? That's not likely to fly. But, in DUI defense, there are usually two vulnerable points in the state's case: The reasonable suspicion to justify the detention (which led to the discovery of the DUI), and the establishment of probable cause for the arrest (which led to the chemical test). It is not uncommon for the defense to argue that the stop was without merit. However, in almost all such challenges, the stop will be ruled as good. So, the next step is to challenge the probable cause for the arrest.

The cop had tailed me for several miles waiting for PC and finally pulled me over literally 500 ft from the PA state border where he would otherwise lose jurisdiction.

Doubtful. I suspect the two states have statutes that allow officers from each state to follow and apprehend violators from their state into the other. I am unaware of any two neighboring states that have no such permissive language in their statutes.

1) Refuse the breathalyzer, take it to trial or maybe get the case dropped.
Pros: Have a great case on the merits w/o a PBT reading. I did well on the dumb tests and was very calm and collected. The prosecutor would have a very difficult case and my family has a great defense lawyer on retainter.

If I had a nickel for every time someone claimed they did "well" (or some other adjective indicating a passing evaluation) on an FST ... The person who is impaired (allegedly) is the WORST person to evaluate their own sobriety as one of the first things to go with the consumption of alcohol is judgment.

Cons: At least $5k for the trial, I would still have an arrest record for the DUI, and my license suspension from the DMV is essentially the same whether I am found criminally liable or not. I was also hiding some contraband in the car that would have made this a much bigger deal if found, and I suspect the cop would have done a more vigilant search if I refused the PBT.

If he arrested you he could search the car anyway (pursuant to impound). So whether you refused or not, he could still make the arrest on probable cause (assuming he had some) and then impound and search the car.

I figured I had about 10 drinks starting at 7 P.M. I did the math in my head and figured it was a close gamble as drinks metabolize 1 drink/hr over 10 hrs. I def. wouldn't have PBTed (or driven) if I felt drunk.

ACTUALLY, the metabolism rate varies between .01 and .015 per hour. So, assuming average weight and drinks that represented single shots or single 12 oz. beers, or 6-7 oz. glasses of wine, I would estimate a BAC of about .05 to .10 over a ten hour spread.

So I chose to blow. After doing the different physical tests I blew a .093, about 15% higher than the cutoff (.08). 2 years ago I would have been fine as it was a .1 state. Bummer. Next step is to take me to the station and blow again.

Actually, Act 24 (which dropped the per se BAC to .08 took place in 2003 - not "2 years ago."

I read somewhere that the human body metabolizes .03 of BAC/hr. So I should be ok, right?

You read wrong.

The cop himself said he wouldn't prosecute (even though he could) if I didn't clear .08 at the station.

Wow! They are easy on DUI in your state!

The cop also said drinking water would actually work against me, so I blew. It read .105!!!! My BAC increased 15% in an hour!!!!

1) How is this possible that my BAC jumped .0015? It should have swung the other way and then I would have been under .08. I hadn't consumed a drink in 4 hours. What is the difference between the field PBT and the station PBT? Is one or the other more accurate?

The PBT is the preliminary device used in the field. Depending on the device, the temperature, etc., these may not be as accurate as the devices at the stations which tend to be much better maintained and calibrated as the standards are higher.

2) Could my dry mouth have anything to do with the 2nd PBT? Does the officer have an obligation to let me wash my mouth out?

It shouldn't, and, no.

3) I will almost certainly file a suppression motion because I don't think the guy had PC to pull me over (its pretty obvious to me he pulled us over because it was a holiday weekend and its two young guys driving at 445 A.M). Generally speaking, a hearing on suppression motions is a cop testifying and the motion being denied. However, in this case, the trooper cam should be discoverable, right? The state cant withhold that video can they? I think the video could be crucial leverage.

If there is video, your attorney should be able to obtain it in discovery. However, there is not always video prior to a stop.

4) .08 is a presumptive DUI right? AKA, I could in theory plead not guilty, go to trial, and admit a .09 but non-impairment?

Nope. .08 is the PER SE level whereby the law says you are impaired. Arguing that you were over .08 and not impaired is not going to fly.

 

[justalayman]

. At about 4:45, a buddy and I were faced with the prospect of a taxi (about $40) or me driving. I felt sober and had not drank in 4 hours so I chose to drive.
I plan to drive about 10 miles to drop off my friend and then planned on driving home about 3 miles after that. About 8 miles into the trip, I get pulled over at about 4:30 A.M. PC for the traffic stop was "swerving",

well, obviously you were speeding well beyond the speed of light since the officer pulled you over before you had left the bar. You had to have traveled back in time for that to happen. Still feeling the booze?

 

[CdwJava]

well, obviously you were speeding well beyond the speed of light since the officer pulled you over before you had left the bar. You had to have traveled back in time for that to happen.

Interesting point ... OP alleged that he and the buddy left about 4:45 AM but were pulled over at 4:30 AM.

Bars stay open all night in MO??

 

[CavemanLawyer]

I guess its already been alluded to but your BAC did not necessarily increase from when you took the PBT to when you took the intoxilyzer, you simply cannot compare the results between the two. There is a reason that PBT's are inadmissible as to the BAC reading in every state in this country, it is because they simply are not scientifically accurate. It doesn't even have to do with all the different variables that affect it like calibration, because all scientific tools require some form of maintenance or calibration to give accurate results. The technology used in the PBT is simply not capable of consistently providing an accurate BAC and the PBT is not intended for this purpose either. PBTs are used for probable cause and to tell whether someone has had any measurable amount of alcohol introduced into their system. The only thing consistent about a PBT is that if you haven't been drinking at all you should blow zero's and if you have been drinking at all then you should blow something other than zero's unless you have already metabolized it all. The actual number reading that you get is just a rough estimate and legally and scientifically meaningless.

As for drinking water before the test, it is virtually impossible that it would have resulted in a higher BAC but consuming anything before taking the intoxilyzer is advised against by all of the intoxilyzer manuals. Some consumables can result in an increased BAC but more likely is that they introduce an interferant which can invalidate the test. The fact that your mouth was dry should literally have no negative effect on the test so long as you were still able to provide a sufficient breath sample, which you apparently did otherwise the machine would not have completed the cycle and provided a reading. If anything a dry mouth is an indicator that you don't have any residual alcohol in your mouth. (It only takes 15 mins for residual alcohol to dissipate from your mouth anyway.) Even though it probably would not have hurt anything, the officer was correct to not let you have a drink before taking the test.

.08 is the per se level but of course that applies to your level at the time of driving not at the time you take the test. From what you are saying it definitely sounds like your BAC would be decreasing but that is not necessarily something that an intoxilyzer supervisor could testify to without having a certain amount of extrapolation facts which you may or may not have provided to the officer. The bottom line is that if you consumed 10 or more drinks in any sitting, however long, you cannot be surprised if you blow over the limit and you also cannot rule out the possible defense of a rising BAC, (under the limit at time of driving and rise to over the limit at time of breath test.) Your attorney can better judge this possible defense.

It certainly doesn't hurt to pursue suppression. Even if you were swerving that still has to rise to the level of a traffic violation which is fact specific. It sounds like you are suggesting this was a pretext stop and that the officer wanted to pull you over and just waited for you to commit a traffic violation first. Under the 4th Amendment that is actually 100% lawful for an officer to do. Each state then has the authority to grant additional protections on this matter under their own state Constitutions. I looked up a couple cases on how Delaware handles this and your state does provide more rights on this issue than the US Constitution. It is a combination of objective and subjective factors. You have to show either that there was no infraction (in which case there is just no PC at all) or that if there was an infraction, the officer had other subjective reasons to pull you over and that you otherwise wouldn't have been pulled over anyway absent those reasons. It seems like a high burden for you given your facts. Its another issue for your attorney to deal with.

Did you say you are going to have an ex parte meeting with the arresting officer? That has got to be the worst possible thing you can do. What would you hope to accomplish? If charges have been filed the officer has no authority to do anything with the case anyway.