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  • Writer's pictureDavid A. Cmelik Law PLC

Is it a good idea to refuse a breathalyzer in an Iowa DUI?

It is a personal decision to consent to, or refuse, both the portable and the desktop breath tests. Facts, circumstances, and objectives determine whether such a decision is "right" or "wrong" to any one person. Consider the following:


As of this writing, the State of Iowa has approved 14 preliminary breath, or, PBT, devices for field use. None is called a breathalyzer. They are called “Intoximeters,” “Intoxilyzers,” and “Alco-Sensors.”  Law enforcement officers just call these portable devices PBTs. Think “P for Portable” to keep these devices separated from other desktop tests, explained later. The portable field breath test is just one of a battery of standardized field sobriety tests, or, SFSTs, that are used to determine whether an officer has reasonable grounds to detain for a request for evidentiary testing.

 

Consent to the portable field test has a significant impact on how a criminal investigation proceeds but it is not evidence. Under Iowa law, the initial, portable screening breath test is not admissible on the issue of intoxication before the jury nor even as to whether or not it was “positive” for ethanol. In effect, the PBT is for the officer to determine whether she will invoke implied consent and detain for further evidentiary testing at a law enforcement center. A subject’s portable testing decision also has no direct effect on driving status in an Iowa prosecution for criminal drunk driving.

 

If an officer is fair minded, they might let someone go who blows under .08 g ETOH/210 L breath. However, some officers believe any amount of breath alcohol content contributes to intoxication—because that’s what their training often tells them. Sometimes, an officer will arrest a subject even if the PBT is below the presumptive level of intoxication and ask for urine or blood later. In other words, if the officer is misusing the portable device as an indirect drug detector—having concluded already the subject is drunk or high but they don’t know which—then the PBT is simply confirmatory bias and arrest is inevitable.

 

If an officer considers that she has reasonable grounds to invoke implied consent and detain for further evidentiary testing, she will either arrest or detain the subject and request an evidentiary specimen of breath. In Iowa, law enforcement use the Datamaster DMT evidentiary breath test machine. Think desktop for DMT. The desktop breath test machine is the main event. The Iowa DOT will use this result or refusal to sanction the driver’s privilege to operate a motor vehicle—usually six months for test failure and 1 year for test refusal. The jury will also see this test result and may use it to convict the Defendant.

 

At the moment of the desktop breath test request, and within a reasonable amount of time and calls, the subject may contact a family member, loved one, or attorney to make a decision as to whether to refuse or consent to this evidentiary breath test.

 

Note that a refusal statutorily disqualifies the arrestee for any expungement later. However, so does a result over .15 g ETOH/210 L breath. Moreover, the jury may use a refusal as evidence of the arrestee’s guilt. So, in the end, there are "good" and "bad" reasons to consent or refuse, all of which are personal to the test subject and arrestee.

 

These reasons are neither right or wrong. There is no one-size-fits all answer to whether someone should consent or refuse.

 

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