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Iowa Supreme Court overturns OWI-3rd jury verdict, excludes inadmissible PBT

The Preliminary Breath Test, or, PBT, is one of a battery of field sobriety tests and usually is administered after the HGN, WAT, and OLS. Neither the result nor positive test for ethanol is admissible before the jury on the issue of intoxication but can be used pretrial by the judge to determine whether an officer had the requisite reasonable grounds to invoke implied consent pursuant to Iowa Code 321J.6

Today the Iowa Supreme Court reversed and remanded a jury verdict of guilty for a new trial in a felony drunk driving case excluding as inadmissible a probationer’s Alco Sensor III breath test results. The Alco Sensor III is a machine certified by the Department of Public Safety for use by law enforcement pursuant to Iowa Code § 321J.5 only as a preliminary screening test to establish grounds to invoke implied consent to request a more evidentiary breath test at the stationhouse in drunk driving cases. In this case, a probation officer used it to test a probationer in the probation office after the probation officer smelled the odor of an alcoholic beverage coming from the probationer. Mere consumption would have been a violation of Defendant's probation. After consultation with a probation supervisor, corrections officials called the police and Defendant was also arrested and prosecuted for OWI-3rd or subsequent offense, a Class "D" felony.

Iowa Code § 321J.5 states, “[t]he results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter.”

Handheld machines like the Alco Sensor III are commonly referred to as preliminary, or, portable breath test (PBT) machines or, simply, PBTs. See Ness at 3 (“often used as a preliminary breath screening device by law enforcement”). They are not the Datamaster DMT evidentiary test machines commonly found in jails and police stations across the state.

Justice Mansfield, writing for the Court, noted that the State had originally filed a motion to ensure the court admitted the PBT test result. Defendant objected at trial, stating that the PBT was used to bootstrap the OWI arrest and thus the result was inadmissible even though Defendant was originally asked to provide a breath sample for his probation officer merely because probationers cannot consume alcohol.

The District Court ruled in favor of the State at trial:

“When used as a 'preliminary breath test' (PBT) under the implied consent law, the results of the PBT cannot normally be introduced into evidence at a trial. However, the implied consent law (Section 321J.6) was not implicated in this case. The Alco-Sensor was not used for the purpose of a preliminary breath screening test.

Instead, it was used by a probation officer to confirm his belief that the defendant was intoxicated when he appeared for a probation appointment.”

Ness at 4-5.

On appeal, the State conceded the PBT results were admitted in error—so the Supreme Court didn’t take up the question at all as to whether they could be used for that purpose.

While the Defendant in this case urged adoption of a Missouri court ruling that held similar device readings are inadmissible for any purpose in that state, the Court refused to go that far.

It held:

“We need not resolve this dispute over the meaning of Iowa Code section 321J.5(2) today because the State concedes for appeal purposes that the .130 test result should not have been admitted.”

The Court was left to determine whether that conceded error was harmless. Presuming prejudice resulted against the Defendant because of the error, the Court held admitting the PBT was not harmless.

The Court noted that the State itself had taken steps to ensure that the .130 g ETOH/210 L breath test result was admitted and mentioned it three times in her closing argument. The jury instructions required the fact finder to determine whether Defendant’s test result was over .08 g ETOH/210 L breath, the legal standard in Iowa. Moreover, videos of the Defendant at the jail were, the Court found, “inconclusive.”

The decision appears silent on whether the Defendant consented to the more evidentiary Datamaster DMT test but it seems clear that the PBT would not have been a fighting issue had he done so.

NOTE: David A. Cmelik Law PLC has no affiliation with the Ness case.

If you or a loved one has been arrested for OWI (DUI) in Cedar Rapids or other Iowa community, contact David A. Cmelik Law PLC for a free initial consultation. But remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.

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