Legal Blog

Breathalyzer Tests in a DUI Case Can Be Confusing

When you are requested to do a Portable Breath Test at the scene of the stop – you don’t have to take it.  There is no statutory penalty for politely stating “I do not want to take the PBT – Portable Breath Test.”

But this can be confused with the official request to give breath or blood after you have been arrested and are at the station or hospital. This official request does have a license suspension penalty if you decline. This is the request made pursuant to Pennsylvania’s Implied Consent law.

To confuse matters further, a ruling in Dauphin County showed that breathalyzer tests conducted with the Intoxilyzer EN 5000 were unreliable, as this particular machine only tested for .05, 01 and .15 blood alcohol content levels. Blood alcohol content above .15 was unable to be proven accurate if obtained from this machine.  The Dauphin County district attorney’s office is challenging this ruling by appealing to the state Superior Court.

Should the state Superior Court agree with the initial ruling on the inaccuracy of the breathalyzer test, thousands of DUI prosecutions could potentially be voided. Another realistic outcome is that the technology used to test blood alcohol content levels will be updated to be in line with current Pennsylvania law.

In Lancaster County, the Intoxilyzer EN 5000 is barely used, if at all. This legal challenge has not been made against the DataMaster series that is used in many local police departments.

The important point to remember is that after you are arrested, you must consent to an official request to give breath or blood, or your license will be suspended for refusing. If there is a challenge to be made against the legality of the sample, your attorney will be able to investigate that as your case develops.

There may also be an increase in requests for blood tests instead of breathalyzer tests that may actually result in more people being charged for drug related DUIs, as opposed to alcohol, according to Pennsylvania State Police Spokesman Adam Reed.

As I said before, in the State of Pennsylvania, the implied consent law mandates that by sitting behind the wheel, you must participate in a breathalyzer, blood, or urine test should you be charged with a DUI. If you refuse any of these tests, you could potentially lose your driver’s license for a year.

Comments are closed

@ 2013 Copyright by Walmer Law Offices. All Rights Reserved.