PBT given by jail employee is constitutional
This DUI hits just keep on coming. Here is a gem out of the Court of Appeals of Minnesota.
In most states the Preliminary Breath Test (PBT) is considered junk science and can’t be used against a DUI defendant. Minnesota decided that not only is it admissible, but that it can be administered by non-law-enforcement jail personnel, and then used to satisfy Admin Per Se in a license suspension action. Not to let this prosecution of what sounds like a nasty DUI related assault go down the systems drain in the interest of protecting the Constitution, the court then held that a two-minute opportunity to contact an attorney is sufficient to avoid a right to counsel violation.
The Cite: Mell v. Commissioner of Public Safety, Court of Appeals of Minnesota, Opinion issued November 25, 2008.
A PBT can be administered by a non-officer jail employee, and then used to satisfy Admin Per Se:
We reject the claim that the administration of the PBT by the jailer was improper simply because it was not done incident to Minn.Stat. § 169A.41. That statute does not limit use of the PBT to traffic stops.
We conclude that Chisago County's legitimate interests in operating its jail safely outweighed appellant's claim of privacy, that the administration of the PBT was justified by legitimate government interests in operating the jail, and that the administration of the PBT did not violate either the federal or state constitutions.
In this case, Officer Puelston personally detected the odor of alcohol on appellant and observed that appellant had been driving. Later in the evening, he learned that appellant took a PBT and had an alcohol concentration of more than 0.08. With this information, Officer Puelston had probable cause to believe that appellant was violating Minn.Stat. § 169A.20 and the authority to read appellant the implied-consent advisory.
A two-minute window of opportunity what a phone and phone directory in the middle of the night was sufficient access to counsel:
We recognize that appellant's arrest and his implied-consent decision were made late at night and that Deputy Puelston decided that he had vindicated appellant's right to counsel after only a few minutes. Nonetheless, based on the totality of the circumstances, we conclude the record adequately supports the district court's finding that Deputy Puelston vindicated appellant's right to counsel by providing a telephone, directory, and time to make contact with an attorney and the finding that appellant ended any good-faith effort to contact an attorney by the time he was asked whether he would take the test. Consequently, we conclude that appellant's right to counsel was not violated.
My Comments: Allowing a non-commissioned jail employee to collect this type of evidence creates an excellent opportunity for those to whom DUI defense attorneys refer as “cop wannabes,” to “play one on TV.” This is a slippery slope, and very slippery at that, when it starts with allowing the application and use of junk science like a PTB.
This opinion is published and is now apparently the law of the land in Minnesota, so I have to believe that the Court of Appeals gave the issue ample thought.
On the other hand, with the right to counsel issues, other states have created a reasonable per se time frame for a DWI suspect to contact an attorney. Two minutes is the shortest I have seen, but since they used to trusty old “totality of the circumstances” rational, this part of the opinion appears to apply on a case-by-case basis and leaves open the possibility that in another Minnesota DUI case a two-minute window could be held unconstitutional.
Defense expert can not rely on preliminary breath test result
In most states the preliminary breath test (PBT) result is not admissible in DUI cases. The PBT is typically inadmissible because it is inaccurate. However, when a PBT is exonerating, and an evidentiary breath or blood test is incriminating, the defense may want the PBT admitted into evidence.
The Opinion: The Court of Appeals of Wisconsin in State v. Fisher, decided against the admission of a defense-favorable PBT on 9/10/08.
Quotes: A general description of the difference between a PBT and an evidentiary breath test:
Unlike the Intoximeter, the PBT is not tested for accuracy either immediately before or after a test. The intoximeter is a “quantitative” test and the PBT is a “qualitative” test.
Clearly, the former test calls for an accurate “measurement” that is, after all, the definition of the word “quantitative”-something “involving the measurement of quantity or amount.” Webster's Third New Int'l Dictionary 1859 (3d ed.1993). A qualitative analysis, as any chemistry major would know, merely determines the constituents of a substance without any regard to the quantity of each. Id. at 1858. Thus, as succinctly defined in the administrative code, the qualitative breath test is for the purpose of determining only whether alcohol is present or not.
Quotes: Why the defense expert was not allowed to proffer an opinion based on the PBT:
Dr. Steele can compare the PBT result with a blood test result 100 times and be convinced as to the reliability of his absorption curve analysis. But is his analysis valid? We must answer the question “no” because Fischer's PBT result is not an empirically tested measurement.
Why allow an expert, one with a science background, to rely on a test whose accuracy at the time of the test cannot be authenticated as a foundation for an opinion? That makes no sense.
Discussion: In DUI cases experts often “backdoor” inadmissible evidence into their opinion. Experts on both sides of the “v” do it. Both prosecutors and defense lawyers at times knowingly allow and even encourage such testimony. In this case, as an example, a defense lawyer could ask the expert generally:
“Given your review of the materials in this case and your whole knowledge of the facts, do you have an opinion as to whether it is possible that Fisher could have been below the legal limit.”
Without qualifying that the expert can only form such an opinion by presuming that the PBT is accurate (an assumption that no honest expert can make), the answer would be garbage and the legal ethics of the question questionable.
