Challenging the Admissibility of Breath Test Results
On the roadside, the officer may ask the driver to submit to a portable breath test (“PBT” test). At trial, the officer must prove that he was certified to administer the “PBT” test and that the device was approved by the state, was working properly, and the driver provided two samples at least five (5) minutes apart. I always review the officers’ notes to check for any mistake we can use to suppress these results at trial.
At the police station, the officer may ask the driver to perform another breath test. A certified chemical analyst must read the chemical test rights aloud, let the driver call a witness to observe his test, confirm the driver did not eat, drink, cough or vomit during the 15 minutes before the test, wait 30 minutes for the witness to arrive, and check the waiting room for the witness. If the chemical analyst failed to perform any of these tasks, we will insist the court exclude the breath-test results at trial.
Sometimes, the officer will request a blood test where he suspects non-alcohol impairment or when the driver is hospitalized. At trial the officer must prove he had the authority to demand a blood test, the person who took the blood was qualified, and the sample was properly identified, secured and delivered to the testing lab. Then, the lab technician must testify the blood was properly tested. If the technician does not testify, we will demand the court exclude the blood-test results at trial.
