cedar rapids / iowa city criminal and OWI-DUI defense

Every breath you take A PBT is voluntary but be careful. If a law enforcement officer who has reasonable grounds to believe a motorist is operating while intoxicated may move on to the next level-- and ask for a PBT. Refusal will invoke implied consent if a judge agrees the officer had the original requisite grounds to request the PBT. If you or a loved one has been arrested for OWI (DUI) or other offense in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, ​contact David A. Cmelik Law PLC at 319-389-1889.

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Cedar Rapids OWI Lawyer: Is the preliminary breath test in the field voluntary?

by David A. Cmelik Law PLC

Yes. The preliminary, or, portable breath test (PBT) is voluntary. However, there are some things you should know about it.

First, the preliminary breath test result is inadmissible before the jury. The law defines the PBT as a “screening” test. And that is a good name for it. It is used to screen OWI test subjects for further testing and arrest.

Iowa Code § 321J.5 states:

 “The 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.”

 In other words, the jury will never see the results of this test, and even a “positive” test result cannot be explained to the jury. An arresting officer cannot even testify at jury trial that “The PBT showed he had alcohol in the defendant’s system.”

However, refusal can carry certain consequences. The law allows a law enforcement officer and SFST test administrator to request a PBT if he or she has other reasonable grounds to believe the test subject is operating while intoxicated or the operator has been involved in a motor vehicle collision resulting in injury or death. Iowa Code § 321J.5.

If the test subject refuses, the officer may invoke implied consent pursuant to Iowa Code § 321J.6(1)(c).

Moreover, even if a PBT indicates a breath alcohol (BrAC) lower than the presumptive standard of .08 g ETOH/210 L breath, if the officer believes the test subject is operating a motor vehicle while under the influence of a drug or combination of drugs and alcohol, the officer may invoke implied consent pursuant to Iowa Code § 321J.6(1)(f).

However, the bright spot is that if you engage the cost-benefit calculus of whether PBT refusal is advisable, you can exclude driver’s license revocation from that equation. The only breath test for which refusal can extend a driver's license revocation is the evidentiary Datamaster DMT test back at the station house upon the invocation of implied consent pursuant to Iowa Code Sec. 321J.6. 

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