Updated: Oct 28, 2018
No. A pedestrian suspected of public intoxication need not consent to a warrantless search for a bodily sample, e.g., a breath test. Of course, refusal is tricky and admissible in a bench or jury trial for public intoxication, a simple misdemeanor punishable by fines ranging from $65-650 and up to 30 days in the county jail.
Law enforcement often seek to PBT, or, preliminary breath test pedestrians to determine whether they are publicly intoxicated pursuant to Iowa Code 123.46.
A PBT, or, preliminary breath test is a test certified for use in Operating While Intoxicated (OWI) cases in Iowa under Iowa Code Section 321J.5.
Under 321J.5, “[w]hen a peace officer has reasonable grounds to believe that either a motor vehicle operator may be violating or has violated Iowa Code § 321J.2 or 321J.2A, or, the operator has been involved in a motor vehicle collision resulting in injury or death,” a certified law enforcement officer may request a preliminary breath test, or, screen using one of 16 approved (as of December 2016) preliminary, or, portable breath test machines, including six Alco-Sensor, six Intoxilyzer, two Lifeloc, one Alert J5, and one Alcotest machines. The PBT devices must be certified by the Department of Public Safety with testing on two examples at the state crime lab before they can be marketed to law enforcement in the State of Iowa.
Iowa Code Section 321J.5(2) states that PBT results may only be used “for the purpose of deciding whether an arrest should made or whether to request a chemical test authorized” in Chapter 321J, which is the drunk driving chapter.
While officers commonly coax SFST test subjects in OWI cases to comply with the PBT as a final act in their field testing by saying that it “can’t be used in court” that isn’t exactly true. The results of a PBT “may be used for the purpose of deciding whether an arrest should be made or whether the request a chemical test authorized in this chapter, but shall not be used in any court action EXCEPT TO PROVE A CHEMICAL TEST WAS PROPERLY REQUESTED OF A PERSON PURSUANT TO THIS CHAPTER.” In other words, in a drunk driving case, the State may use a PBT to make an OWI arrest or invoke implied consent sufficient to request a more reliable Datamaster DMT test back at the stationhouse. A test failure or refusal there will result in a driver’s license revocation.
A refusal of a PBT while a subject is a pedestrian has no implication on a person’s driver’s license and can be refused as a warrantless bodily specimen search.
An arrestee for public intoxication pursuant to Iowa Code Section 123.46 must be informed by law enforcement, however, that he or she has a right to a chemical test at the defendant’s own expense. “If a device approved by the commissioner of public safety for testing a sample of a person's breath to determine the person's blood alcohol concentration is available, that is the only test that need be offered the person arrested.” Iowa Code Sec. 123.46. There is no requirement that a test subject comply with such a test without a search warrant. Ultimately, under the public intoxication statute, the offer is most appropriately made after the arrest has already been made.
The synthesis of Iowa Code 321J.5 and 123.46 indicates that an appropriate law enforcement offer is a Datamaster DMT test at the stationhouse within two hours of an arrest. However, be advised that law enforcement and local prosecutors may attempt to PBT public intoxication suspects in the field before arrest.
In a prosecution for public intoxication, a breath test offered to a public intoxication arrestee pursuant to Iowa Code 123.46 is admissible upon proof of proper foundation if taken within two hours after the person’s arrest for public intoxication. Iowa Code Section 123.46.
Also be advised that the officer can testify as to a PBT refusal before a magistrate or jury in a public intoxication case. Prosecutors will also seek to offer evidence of a PBT refusal in an OWI case.
Regardless, if you or a loved one has been arrested for OWI (DUI) in Cedar Rapids, Iowa City, Waterloo, Linn, Johnson, Blackhawk, or other Iowa communities or counties, contact Cmelik OWI and Criminal Law PLC for a free initial consultation at 319-389-4276 or https://www.cedarrapidsduilawyer.lawyer.