Passive PBT violates 321J?

Updated: 19 hours ago

Recently, I reviewed a Cedar Rapids, Iowa, OWI (DUI) traffic stop wherein the officer, an experienced SFST administrator, was training someone new. The experienced officer activated emergency top lights for a perceived traffic violation and made contact with the driver and other occupants in the car. He quizzed the driver about consumption of alcohol. Not satisfied with the driver’s answers, he returned to the patrol car and his trainee. He contacted dispatch to indicate he was out with a 10-55, a possibly intoxicated driver, and he said he didn’t believe the driver was being honest about how much he had to drink. He fitted a funnel-like device to the preliminary, or, portable breath test machine and said he was going to talk to the driver again, that the passive mouthpiece when fitted to the PBT would provide a mere positive or negative response—not an amount and that it was “not a PBT.” He apparently thought he could jump straight to a screening test when the PBT was fitted with this questionable device without conducting standardized field sobriety tests, or, SFSTs to establish the reasonable grounds necessary to request a PBT under Iowa Code § 321J.5.

Under the law in Iowa, a law enforcement officer can only request a preliminary screening test when a peace officer has reasonable grounds to believe that either of the following have occurred: (a) A motor vehicle operator may be violating or has violated section 321J.2 or 321J.2A; (b) The operator has been involved in a motor vehicle collision resulting in injury or death.

The device’s manufacturer states that it is “reusable” and meant for “large numbers of suspects,” presumably crowds, either at bars, sporting events, or entertainment venues which makes it seem worse yet— like a general warrantless search.

It remains an open question whether a positive or negative result on this “passive test” mouthpiece impermissibly informs further testing sufficient to suppress it.

If you or a loved one has been arrested for OWI in the State of Iowa, contact us.

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