When Can a Police Officer Ask Me to Take a Portable Breath Test?

August 13, 2014

By Keffer Hirschauer LLP

We’ve all seen them. The handheld breath machines which are known as Portable Breath Tests, or PBT’s. A PBT is nothing more than a quick, on-scene test, given to individuals to let the officer known that the person has been drinking; and to give the officer a ballpark guess as to what the blood alcohol concentration of the person is. And, while these instruments are helpful for law enforcement, there are a couple of important rules about them that both civilians and officers should know.

First, if there is an arrest, PBT’s are not admissible in any subsequent trial. By their nature, PBT’s are uncertified instruments and their reliability varies widely from instrument to instrument. Further, the instruments themselves do not have a maintenance regiment like certified breath test instruments and, as a result, not particularly consistent nor scientifically reliable.

Second, an officer is not permitted to administer a PBT to anyone without cause. In Indiana, the Court of Appeals decided in Whitney v. State that an officer must have reasonable suspicion in order to even offer an individual a PBT. This means that the officer must have some objective, articulable basis that a crime has been, or is about to be, committed and the PBT will assist in the officer’s investigation of that crime.

Lastly, there is no penalty for refusing a PBT. An individual has no responsibility or obligation to submit to a PBT if an officer requests that one is performed. While, at times, officers may attempt to intimidate or posture as though it is obvious that a person must submit to such a test, a law enforcement officer has absolutely no authority to penalize any refusal of a Portable Breath Test.

If you have been arrested for an alcohol-related offense, make sure to contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to your case. Act now and contact us today at (317) 857-0160.