DUI Preliminary Breath Test

Written by: The Law Offices of Garrett T. Ogata

The Preliminary Breadth Test (PBT) is a small portable handheld device that law enforcement carries with them to test a person’s breath alcohol content if they have reasonable grounds to believe that a person was driving or in actual control of a vehicle while under the influence of alcohol.  This device only test for alcohol.

Do not confuse this with a Breathalyzer/Intoxilyzer machine or a blood draw that is used to test your blood alcohol content (BAC) with a Preliminary Breath Test (PBT) device.  The Breathalyzer/Intoxilyzer machine test must be done by a certified technician, usually a police officer, while the Preliminary Breath Test (PBT) device can be done by any officer that stops you at the scene.

The Preliminary Breath Test (PBT) device does not have to be operated by a certified technician or calibrated.  The Breathalyzer/Intoxilyzer machine must be operated by a certified trained technician and calibrated to ensure it is operating properly.  The blood withdraw will also have procedural safeguards that must be followed.  If you are arrested and taken before a Breathalyzer/Intoxilyzer machine or a blood draw nurse, and if you refuse to give your breath or blood, you will be held against your will and a nurse will take a blood sample by force with the help of several police officers.

If you do submit to a Preliminary Breath Test (PBT) handheld device conducted by an officer at the scene, the PBT results are not admissible in any criminal action to prove you were driving under the influence.  However, it may be used to show there were reasonable grounds to make an arrest.

Nevada’s Implied Consent statute NRS 484C.150 states that you have impliedly consented to a test, whether Breathalyzer/Intoxilyzer machine or blood draw when you were given a Nevada driver’s license.

However, the implied consent statute does not circumvent the requirement of having probable cause to make an arrest under the 4th Amendment.  For an officer to force you to give an evidentiary test, such as the Breathalyzer/Intoxilyzer machine or blood draw by a nurse, he or she must have probable cause, or voluntary consent from you, or implied consent if you have been arrested, or when a driver is dead, unconscious, or in a condition rendering him incapable of being arrested.  See Davis v. State, 99 Nev. 25, 656 P.2d 855 (1983).

If you refused to perform a Standardized Field Sobriety Test and the Preliminary Breath Test device (PBT), then the arresting officer has less evidence to prove probable cause to justify your arrest.  If an officer does not have probable cause then it is an unconstitutional search and seizure.

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