Written by attorney Edward Jacob Sternisha


A brief guide detailing the difference between a breath-test BEFORE arrest and a breath-test AFTER arrest. This guide will detail the Preliminary Breath Test (PBT) before arrest. A separate guide will detail the breath-test after arrest (currently called a DataMaster in Michigan).

Additional resources provided by the author

DO I HAVE TO TAKE A BREATH TEST IF ASKED BY THE POLICE? This one is a little different than the post about Field Sobriety Tests (See other link to read that post). Unlike Field Sobriety Tests (FST’s) failure to submit to a Breath, Blood, or Urine Test (Chemical Test) does come with consequences but first, it is better to get a good understanding of what kinds of Chemical Tests you may encounter. For the purposes of this column, I will discuss a breath test before arrest – a PBT, typically conducted on the roadside. A breath test (or other chemical test) AFTER arrest will be covered in a separate post so stay tuned (make sure you “Like” if you have not yet done so. Each test is different from the other and each has different purposes and consequences. As mentioned in a previous post the police may request that you submit to FST’s in an attempt to determine if you were Operating While Intoxicated and for the most part, there is no law that requires you to submit to FST’s (as it now stands in Michigan). Breath tests are different. If the police suspect that you may be operating while intoxicated (OWI), they may request that you submit to a Preliminary Breath Test (PBT). Even if you refused to submit to the FST’s and likely face no penalty, you are still obligated to submit to a PBT or face a penalty. Here’s a typical example: The police conduct a traffic stop and for some reason they suspect you may have been drinking. Generally they ask you to perform a series of FST’s, and at some point they ask that you submit to a PBT and they recite to you your PBT rights. Those rights may go something like this, “Michigan law requires that you submit to a Preliminary Breath analysis upon request of a peace officer. Your refusal to submit as requested, shall result in you being charged with a civil infraction with a penalty of up to a $100.00 fine.” Keep in mind that although they use the words, “…shall result in you being charged…” refusal is NOT a criminal offense. It is ONLY a civil infraction traffic ticket with no driving points and you cannot be arrested for refusing. Basically, if you refuse to submit to a PBT, you will get a traffic ticket with a fine of around $100.00 (depending upon jurisdiction – some charge a little more). Know that this is for the typical traffic stop scenario for the average motorist. Refusing a PBT if you hold a commercial driver's license (CDL) for example may result in different consequences. Also keep in mind that if you DO submit to a PBT, the officer may use the results of that test as the only reason to arrest you, EVEN if you did not participate in the FST’s or did participate in the FST’s and thought you did well. Basically, the results of the PBT can be, in and of itself, probable cause to arrest you for OWI. Now, although the results of the PBT can be used as probable cause to arrest you, for the most part, the PBT results cannot be used as evidence at your trial – therefore, the police will generally need more evidence, such as FST’s, admissions that you made about drinking, etc. If you already refused to submit to FST’s, and you exercised your right to remain silent and did not make any admissions to the police about drinking, the prosecutor has less evidence to use against you in their attempt to convict you. Understand, it is imperative that you have a qualified OWI defense attorney to properly represent you if you are charged. This is not something you want to try on your own. In an OWI case I had some time back, my client refused to submit to any FST’s and did not submit to any breath tests. He also did not make any admissions to drinking. The police obtained a search warrant for blood and although the blood test returned a result of .14%, the jury found him Not Guilty of OWI because there was not sufficient evidence to prove beyond a reasonable doubt that he was .14% at the time he was operating a vehicle. There are so many aspects to an OWI case that even though he may have been operating a vehicle, and even though his BAC may have been .14%, the jury did not believe beyond a reasonable doubt that he was Operating WHILE Intoxicated. Make sense? Also understand that there are specific rules that the police must follow in order to perform the PBT, the FST’s, and other aspects of an OWI investigation that having a qualified OWI defense attorney properly investigate your case may be the difference between you being convicted or acquitted. Having been a police officer who made many drunk driving arrests, being a licensed private investigator for about 20 years, and being a criminal defense attorney who focuses on OWI cases, I search for everything I can to ensure each client’s rights are protected. Often times people will try to "fool" or "trick" a PBT by trying something they heard may change the results, such as by placing a penny under one's tongue before the test or by eating a cough drop first. The first thing to keep in mind is that these so called tricks do not work. The second is that the police are required to observe you for 15 minutes, and to check your mouth, prior to administering the PBT. Another method of an attempt to change the PBT results that happens quite frequently is where the motorist will either pretend to blow into the straw, or will suck in fresh air instead of blowing. Not only will neither of these work, an attempt to do these will likely result in the officer calling it a refusal - and thus, a $100.00 fine. If you elect to refuse the PBT, simply say "no thank you" because any attempt to alter the results will only heighten the officer's suspicions that you are over the limit anyway. Always be polite and respectful to the police. They are doing their job. Do not challenge them with legal jargon – that is my job. Remember, If You Drink, Call A Cab. If Arrested, “Call Ed Instead!”® (616) 233-CALL-ED. Law Office of Edward J. Sternisha, PLLC 448 Leonard St NW, Grand Rapids, MI 49504. [The comments provided here are not legal advice but are simply provided as information for people to consider. Each case is different and individuals should always seek legal counsel regarding their own specific matters. A motorist who refuses all FST's and the PBT may still get arrested and charged with OWI. It will be up to your attorney to determine how to proceed with your defense. Refusing a breath, blood, or urine test AFTER arrest may be considered an Implied Consent refusal and was not discussed here and comes with different consequences including the suspension of your driving privileges so stay tuned for future posts or call this office for information. The information here only applies to Michigan and could change as the laws change. The comments provided do not create an attorney-client relationship. If you need legal assistance, contact this office in person, by phone, or by email. Do not post personal information about your case on this public forum. LEGAL EDvice® and Call Ed Instead!® are registered service marks of the Law Office of Edward J. Sternisha, PLLC. All information is for entertainment purposes only.]

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