Probably the most famous law enforcement tool used by police officers in a DUI or DWI investigation is the preliminary breath testing device. Most people believe this is the only test given to determine guilt or innocence. What is important to remember, however, is the word “preliminary.” Once you have that in mind, you can infer that more testing is likely to come. What are your rights when you are asked to take a “preliminary” test?
KSA 8-1012 shows us that a refusal to take a preliminary breath test alone is a traffic infraction. Not only is it a seperate crime, it also determines that you have consented legally to take a preliminary test if you operate a vehicle on the roads of Kansas. While an officer still needs reasonable suspicion that a driver might be driving under the influence to request the test, most attorneys agree this is a low burden. An important aspect of this law, however, is that there are notices the officer must give a driver before requesting the driver to submit to the test.
For the defense, there have been questions of self incrimination. Are you being forced to incriminate yourself by having your choices limited to taking the test or being charged with an infraction for refusing? How accurate are these devices? Most states do not allow preliminary breath test results to be used at trial, so why should we give validity to their results?
Prosecutors and law enforcement would argue an extra tool is often needed to help determine an arrest. Many factors can affect a field sobriety test, so this device helps to make a further determination for an arrest. Case law also seems to be on the prosecutors side as far as the self incrimination issue as Kansas courts have determined test results are generally not testimonial in nature and, thus, you are not incriminating yourself by giving a test.
Preliminary breath testing is still a debated issue and you can find parties on each side who make valid arguments. Determine the law of a preliminary breath test in your state and comment on any differences.
Until next time, drive safe!