HF 2015: Proposed Iowa House legislation aims to admit now-inadmissible PBT results
Representative Sandy Salmon of Janesville has introduced a bill, HF 2015, to render admissible the results of so-called portable breath tests, or, PBT, machine results in drunk driving cases following an initial, inadmissible PBT screening test requested pursuant to Iowa Code § 321J.5. The bill would change Iowa Code § 321J.5 which currently renders inadmissible any preliminary breath test “result” by adding the following language:
“This subsection shall not be construed to prohibit the results of a portable breath test administered after a preliminary screening test pursuant to section 321J.6, subsection 2, from being used as evidence in any court action.”
The proposed legislation would also amend Iowa Code § 321J.5(2) to add:
“If the peace officer determines the person’s breath shall be tested following the administration of a preliminary screening test, a portable breath testing instrument designed to determine alcohol concentration may be used if the test is administered by a certified operator of the instrument using methods approved by the commissioner of public safety.”
In other words, it appears that the legislation is intended to proxy a second admissible PBT result for the evidentiary Datamaster DMT test result.
The reason PBTs have not been admissible for over thirty years is that portable testing is considered unreliable by legislative history and judicial precedent:
“The problem with this quick, convenient test is unreliability. To guard against this problem, the legislature chose to make the ‘results’ inadmissible in evidence . . . The unreliability inherent in the test goes to both aspects of the test; not only may the test register an inaccurate numerical percentage of alcohol present in the breath, it may also be inaccurate as to the presence or absence of any alcohol at all.”
State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987).
Thus, the “first” screen in the proposed legislation serves neither legislative history nor any particular rights of the defendant. The PBT isn’t inadmissible because it was the first breath test; it was inadmissible because all portable tests are deemed unreliable.
Proponents of portable devices will argue that was over 30 years ago when the PC ran DOS and the only product Apple sold was a Macintosh. But no statistical evidence yet exists for the largely anecdotal argument that the PBT is more reliable in the field than its Datamaster DMT counterpart—a self-diagnosing, internally tested Internet connected device that messages the Department of Public Safety when it triggers any number of error messages from excessive margins of error within the device to ambient ethanol detection. It is usually the only certified Datamaster DMT in a given county. It sits on a desk and is not subjected to the elements or significant temperature changes as are “portable” devices, tossed in and out of patrol cars. Ask yourself if your laptop computer can take that kind of abuse for very long. Not even police could argue that point—they use ruggedized Panasonic laptops that are mounted inside their patrol cars and are guaranteed against certain levels of shock, dust, and water ingress to military standards.
In the last month, the Iowa Supreme Court remanded for a new trial excluding the evidence of a PBT where a prosecutor argued § 321J.5 didn’t apply to a PBT result in an OWI by ostensibly offering it pursuant to a probation contract. The court found the erroneous PBT admission was not harmless. The Office of the Attorney General wisely conceded it should never have been offered—thus avoiding the potential for a statewide holding that PBTs are never admissible, even as part of zero-tolerance probation checks.
This legislation would prevent such a holding. HF 2015 would reduce to a formality the now inadmissible preliminary breath screen allowing law enforcement to simply ask for a second test with another portable machine. This legislation reveals why the Department of Public Safety calls screening devices “portable” instead of “preliminary”—foreshadowing their desire to legislate the admissibility of preliminary screening test machine results excluded for over thirty years because of questions of reliability.
If you or a loved one have 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 sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.