Roadside Breath Testing in New Jersey

Police departments in many towns in New Jersey are now utilizing portable hand held breath testing devices known as preliminary breath testers, or PBT’s. A PBT can either report an actual breath test result in numerical format such as 0.08% breath alcohol, or it can simply show a positive or negative result, signifying whether alcohol is present in the breath or not.

The PBT’s are generally supposed to be used at the end of the investigation, and not as the basis to continue an investigation. The theory is that once the officer confirms the presence of alcohol, any subjective evidence collected thereafter, such as field exercises administered to the suspect and interpreted by the officer, may be tainted by the positive result on the PBT. Therefore, PBT’s are intended to be “confirmatory” devices once the officer has undertaken other subjective testing.

No one ever has to submit to a PBT roadside. The implied consent law, which states that a driver in New Jersey must submit to breath testing where an officer has reasonable suspicion that he or she is under the influence of alcohol, applies only to evidential breath testing on an approved machine, such as the Alcotest 7110 MKIII-C, which is the only approved evidential breath testing machine currently in use in New Jersey.

When asked to blow into the PBT, a suspect is not usually advised that he or she does not have to blow into the device. If you refused to blow into the device, you cannot be charged with “Refusal to Submit to Chemical Testing”.

If the PBT shows a breath test result under 0.08%, and the officer believes that the individual is impaired, the officer may still arrest the driver. The arrest may be based on the officer’s belief that, even though the driver is not over the “per se” limit of 0.08%, the individual’s ability to operate the vehicle is still affected by alcohol. A conviction can be sought and obtained if it can be proven beyond a reasonable doubt that alcohol caused a deterioration of the driver’s ability to operate the car. The officer also may believe that there are other causes of inebriation, such as a drug based intoxication, and will arrest based on the general observation of the driver, and then conduct more physical testing back at the police station. Urine or blood testing may be sought, as well.

An interesting issue arises when the driver submits to the PBT roadside, but then declines to submit to the breath testing in station. Technically, the driver must submit to the breath testing on the Alcotest machine in station, based on the implied consent law. If the driver does not submit, he or she will be given a separate charge of “Refusal”. However, if the driver says or thinks, “I gave a breath test roadside, already. I failed that test according to the officer. Why would I want to submit again when I already did, and provide even more evidence against me.” There could be confusion regarding the issue of submitting to the testing.

This issue and many others surrounding the use of the PBT should be evaluated by a qualified New Jersey DWI defense attorney. Never assume that you will be automatically convicted of all the charges against you.

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