The typical traffic stop leading to an OUI arrest goes as follows:
- the officer stops the driver for a traffic violation;
- while speaking with the driver, the officer notices signs of intoxication (glassy/bloodshot eyes, slurred speech, the odor of alcohol);
- the officer questions the driver about drinking (often the driver will foolishly admit to having “just a couple drinks”);
- the officer asks the driver to step out of the car to perform a field sobriety test;
- when the field sobriety test is complete, the officer will ask the driver to blow into a portable breath test (PBT).
- If the officer concludes that the driver is impaired, the driver will be arrested for OUI.
After the driver is arrested, he will be brought to the police station, booked, and advised of his rights. At this point, police will ask the driver to take another breath test. If the driver refuses to take this test, he will automatically lose his license for at least 180 days.
There is a big difference between the PBT used at the traffic stop and the breath test used at the police station. The PBT is far less reliable than the breath test administered at the police station.
In fact, the PBT does not even qualify as a “breath test device” under the applicable state laws. See M.G.L. c. 90, Section 24K and 501 CMR 2.01. Consequently, the PBT typically cannot be used against the driver at trial.
If you’re taking your OUI case to trial and you’re concerned that an unfavorable PBT test might be brought up, it’s important to file a motion in limine asking the trial judge to preclude any mention of the PBT during witness testimony.
However, you should realize that the breath test done at the police station (if properly administered) can and will be used against you at trial.