Friday, June 21, 2024

DUI News Blog

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Preliminary Breath Tester

The Alco-Sensor III is the main preliminary breath tester (PBT) used in Kentucky.

The PBT may be used by the police pursuant to KRS 189A.100. Pursuant to this statute the PBT may be administered in the field to a person suspected of violating KRS 189A.010 before the person is arrested. The test may be administered in addition to any other blood alcohol tests authorized by law. According to KRS 189A.100 (1) the refusal of the PBT shall not be used against a Defendant in a court of law or in any administrative proceeding. The purpose of the PBT, which is questionable, is to aid in the determination of probable cause to arrest. A preliminary breath tester will display a blood alcohol level just like the Intoxilyzer. By law, this is only admissible in a probable cause hearing to show “the presence of alcohol”. The officer cannot, by case law, testify to a specific number. Therefore, although the PBT is admissible in a probable cause hearing to show the presence of alcohol, its value to establish probable cause is basically none. Greene v. Commonwealth, 244 SW 3d 128 (KY Court App. 2008). The PBT is never admissible in any trial, even to show the presence of alcohol.

The new breath test manual contains a section on the the Preliminary Breath Tester. Some of the information contained is very useful for defense counsel in suppression hearings involving the PBT. These are as follows:

  1. Byron Wesley, a former chemist with the State Police, ran a survey a number of years ago having a base of approximately 1400 tests. The results showed that in about 90% of the tests, the PBT was only accurate to plus or minus .03 blood alcohol units. In the balance of the tests, the machine was only accurate to plus or minus .05 blood alcohol units. The PBT is to be the last field sobriety test to be administered. The manual indicates that if the officer runs the PBT first he will have the number in his mind. This may effect how she subjectively grades other field sobriety tests.
  2. Before a PBT may be administered, the Alco-Sensor III recommends a 15 minute observation period. (Remember this is a breath test, and by the Administrative Regulations a 20 minute observation period is required). Officers rarely if ever wait the 15/20 minute period before administering the PBT. By law, before any test is admissible the manufacturer’s instructions must be followed, Commonwealth v. Wirth, 936 SW 2d 78 (Ky 1996) and Commonwealth v. Roberts, 122 SW 3d 524 (Ky 2003).
  3. The operating temperature range for the Alco-Sensor III is 68° F thru 98° F. This seems to imply the use of the machine at temperatures below 68° F or above 98° F would be inappropriate.
  4. To properly use the machine the subject is required to blow into the machine for a period of 3-5 seconds. While she is still blowing, the officer must depress the read to capture a one milliliter sample which the machine uses to analyze the blood alcohol content.
  5. The manufacturer recommends the PBT be checked for accuracy monthly. The manual says the KSP technician will check the accuracy of the PBT when she conducts a monthly service of the Intoxiliyzer. The manual states the KSP technician can only adjust the devices they have been trained to work on. Otherwise it must be returned to the manufacturer.
  6. The manual requires the officer to allow a minimum of two minutes between tests if alcohol is detected. The officer must turn the device off, wait, and allow the fuel cell electrical charge to dissipate. It’s not unusual for officers to run more than one PBT on a Defendant. This rule is never followed.

Hopefully the above information will be useful in Suppression Hearings involving probable cause issues in DUI arrests.

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Wilbur Zevely

Wilbur Zevely

Wilbur M. Zevely is a partner in the Florence, KY law firm Busald Funk Zevely, PSC. He has practiced law since 1972. He concentrates his practice in criminal law, domestic relations, and DUI cases. He has defended thousands of clients in criminal trials before Judges and juries. He has practiced throughout Kentucky and Southern Ohio. Mr. Zevely received his B.S. degree in Chemistry from the University of Cincinnati in 1968 with a minor in math. His J.D. is from Salmon P. Chase School of Law in 1972. Prior to entering the practice of law, he worked as a chemist for The Monsanto Co., under contract with the United States Atomic Energy Commission. For many years, Mr. Zevely, has lectured on DUI issues for the Kentucky Association of Criminal Defense Lawyers, (KACDL), the KY Bar Association, the Northern KY Bar Association, and the Kentucky Department of Public Advocacy. He taught for more than 10 years at the week long basic training course at Faubush, KY for the KY Department of Public Advocacy. He writes a regular column on DUI tips for the KACDL news letter. In the early 1970’s Mr. Zevely, incorporated “The 15th Judicial District Public Defender, Inc.,” this was the first State funded Public Defender program in the Northern KY area. Mr. Zevely ran the program for years. The program represented indigent clients in Boone, Gallatin, Grant, Carroll, and Owen Counties. Mr. Zevely along with retired Judge Stanley Billingsley authors the Kentucky Driving Under the Influence Law Book which is a West Law Publication. The book is rewritten annually, and has been published for 19 years. Mr. Zevely has served as director of the KACDL since its formation. Mr. Zevely is a member of the Kentucky Bar Association, the Ohio State Bar Association, KACDL, NACDL, and is admitted to practice in Federal Court for the Southern District of Ohio and the Eastern District of Kentucky. Mr. Zevely received the 2014 Distinguished Lawyer award from the Northern Kentucky Bar Association. He also received the 2015 Lifetime Achievement award from the Northern Kentucky Bar Association.

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