Why do I have to provide 3 breath tests?

Updated: 19 hours ago

Potential Iowa OWI, or, Operating While Intoxicated, clients and current clients alike are often confused about why a standardized field sobriety test, or, SFST, administrator and arresting officer asks for a breath test at the roadside.

As a preliminary matter, all breath tests are searches of your person. They require one of two things: your consent or a warrant. If you do not consent to a PBT, however, and the officer reasonably suspects you are under the influence, they may invoke implied consent and detain you for evidentiary testing at the stationhouse per Iowa Code Sec. 321J.6. If you do not consent to a Datamaster DMT, the Iowa DOT may administratively revoke your privilege to operate a motor vehicle in the State of Iowa typically for twice as long as it would if you failed the DMT test-- provided a breath alcohol concentration of .08 g/210 L breath.

The first breath test in this confusing process

Iowa OWI defendants are typically confused to be asked approximately 3 times to provide breath samples: first for the PBT, second for the DMT, and third to be released from jail.

is a PBT, or, preliminary breath test, and is sometimes called a "portable" breath test. It is considered among a battery of screening tests that, including the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS), that the SFST test administrator and arresting officer use to determine if reasonable grounds exist to invoke implied consent and ask for additional chemical testing at the stationhouse.

Test subjects are often confused by the fact that an officer will say the PBT "can't be used in court." Officers will also sometimes qualify a PBT with "it just tells me what is causing the impairment I am already seeing" or "this just tells me if alcohol or something else is causing the impairment I am seeing." The officers say this because state law forbids prosecutors and police from revealing to the jury the portable, or, preliminary breath screen. It is only used for screening purposes by the officer to take the investigation to the "next level." It is, in fact, intended to merely be a screening tool.

While the first, roadside breath test, or, PBT, is considered part of the battery of sobriety tests, it is usually the last such test after an officer has already concluded they have "reasonable grounds" to believe someone is under the influence of an alcohol or a combination of drugs and alcohol sufficient to make such a PBT request per Iowa Code Sec. 321J.5.

A PBT test refusal or failure at this point is sufficient to invoke implied consent for a second, evidentiary breath test, called the Datamaster DMT. The second breath test result may be used by prosecutors, whether a test failure or refusal, to prove guilty at jury trial. But another confusing part about the Datamaster DMT is that it frequently comes after an officer has made an arrest for OWI rather than merely detaining the subject for further testing by invocation of implied consent. Officers sometimes say, "this is just for purposes of your driver's license" because the administration of the DMT test requires an implied consent advisory that references the administrative revocation of the privilege to operate a motor vehicle in Iowa. Sometimes, in the alternative officers describe the DMT like they do the PBT-- as merely ruling in or out alcohol as the cause of the impairment the officer has already concluded exists.

Once booked in and under arrest following the OWI investigation, drunk driving defendants in Cedar Rapids or Iowa City are sometimes told they may not be released unless they wait five hours and provide either a PBT or non-evidentiary DMT test result of .05 g/210 L breath.

This third test is for purposes of the jail's policy and is intended to prevent the public release of someone who is publicly intoxicated.

Those are the three breath tests typically administered in a Cedar Rapids OWI, or, Operating While Intoxicated, investigation, sometimes called DUI in other states. If you or a loved one have been arrested for OWI in Cedar Rapids, Iowa City, or other Iowa community or county, contact us for a free initial consultation. Let us help you chart your best path back to life before criminal law crisis. However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the internet does not establish an attorney-client relationship.

© 2020 by David A. Cmelik Law PLC