By David Daggett

With apologies to William Shakespeare, this month’s blog will address preliminary breath tests and their impact on police and prosecutors in the prosecution of impaired drivers. The preliminary breath test statute is located in the Maryland Traffic Code at TR § 16-205.2. Like many statutes, the language in the PBT section was obviously crafted by defense attorneys and severely curtails the ultimate use and benefit of PBT’s to prosecutors. For some reason, another famous quote attributed to Shakespeare comes to mind: “The first thing we do, let’s kill all the lawyers.” While Billy the Bard may have had a valid point, that is a topic best left for a future discussion.

TR § 16-205.2 states that a police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while under the influence or impaired by alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a PBT to be administered by the officer. It goes on to state that the suspected impaired driver must be advised by the officer that neither agreeing to (nor refusing to) take the PBT has any effect on their rights as provided via the DR-15. So far, fairly innocuous.

The real problems with the PBT statute appear in sub-section (c), which I’ve broken down into five components:

  1. The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made;
  2. The results may not be used as evidence by the State in any court action;
  3. The results of the preliminary breath test may be used as evidence by a defendant in a court action;
  4. The taking or refusal to submit to a preliminary breath test is not admissible in any court action;
  5. Any evidence pertaining to a preliminary breath test may not be used in a civil action.

1. Use as a guide for the police officer in deciding whether an arrest should be made.

In other words, the officer is permitted to use the PBT results when determining whether probable cause exists to place the suspect under arrest. The problem when using it in such a fashion is that defense attorneys will then use the fact that the officer relied upon the PBT to attack the legality of the arrest and/or as evidence that the defendant was not impaired. The following fictional cross-examination of an arresting officer is commonplace:

Def. Atty. – So Officer Hooker, you observed my client operating his vehicle, correct?

Officer – That is correct, and please, call me T.J.

Def. Atty.– And you spent a good bit of time in face to face contact with my client, yes?

Officer– Yes.

Def. Atty. – And you spent a period of time making personal observations of my client, did you not?

Officer – I did.

Def. Atty. – And you had my client run through a battery of field sobriety tests, agreed?

Officer – Agreed, although I don’t recall having your client do any running.

Def. Atty – So even after all those observations—driving, face to face contact, physical observations and SFSTs—you were still not sure whether you had probable cause to arrest this upstanding citizen so you gave him a PBT, isn’t that correct?

Prosecutor – Objection!

Court – Grounds?

Prosecutor – The PBT statute is stupid.

Court – Objection overruled, although I will take judicial notice of the fact.

Since the State is prohibited from admitting the results of the PBT, the Court will only know that one was administered, but would not be permitted to infer a particular reading. While the State could argue that the defense “opened the door” to the PBT issue and thereby try and backdoor the result, the fact that the statute is so specific as to the State’s inability to introduce the results would most likely trump the “opening the door” argument. Still, give it a try.

In cases in which the defendant is clearly intoxicated, the offering of a PBT would not be detrimental to the State’s case (nor perhaps would it even have been offered.) In close calls, cases where the SFSTs are on video and the camera doesn’t catch many of the subtle clues, and in cases in which the defendant refused to take the intoximeter, the line of questioning above could easily negatively impact the verdict, especially in front of a jury.

2. The PBT may not be used as evidence by the State in any court action. 

The results of a preliminary breath test may not be used by the State in any court action. “Court action” clearly encompasses the trial. That goes without saying. But what about a suppression hearing to determine whether probable cause existed for the arrest? Are the results admissible at a sentencing hearing? What about a violation of probation hearing? A VOP has been called both “civil” and “quasi-criminal” and uses the preponderance of the evidence standard applicable in civil hearings. Of course, subsection (c) of §16-205.2 further states that any evidence pertaining to a preliminary breath test may not be used in a civil action.

The case of Harmon v. State, 147 Md. App 452 (2002) seems to have put to rest these questions. Sheri May-Dawn Harmon was nearly done with the jail time portion of her sentence in Charles County for forgery when she returned from work release with alcohol on her breath. As alcohol consumption is generally frowned upon for inmates on work release, jail officials administered her two PBT’s, 20 minutes apart, with readings of .07 and .05 respectively. Ms. Harmon laid the blame on cold medicine (albeit really good tasting cold medicine!). In a subsequent proceeding to consider whether her probation should be revoked (it was about to begin) and a longer jail term imposed, the trial court admitted the PBT results.

The State argued that TR §16 – 205.2 is only applicable to violations of the Transportation Article and thus wouldn’t prohibit the PBT results from coming into a VOP hearing. Ms. Harmon argued that § 16-205.2, precluded admission of PBT results in any court proceeding, because such tests were far less reliable than breathalyzers, and were only to be used to give officers some idea of whether an arrest was appropriate.

The appellate court looked to the plain language of TR §16-205.2 and held that nothing in the statute limited its applicability to drunk driving prosecutions and that PBT evidence was equally inadmissible in a probation revocation proceeding.

We perceive the language of the statute as exceedingly clear, however. Section § 16-205.2 pronounces that a PBT “may not be used as evidence by the State in any court action.” No exceptions are embodied in the text, nor is the mandatory language of the text limited to transportation actions. Indeed, the only limitation is that the action must be a court action, which the hearing below surely was. Regardless of its precise nature, it was an evidentiary court proceeding with significant consequences to appellant.

If a VOP is considered a “court action,” suppression hearings and sentencing hearings would certainly be as well. It is clear that the legislature, when drafting this statute, chose their words carefully and decided upon “court action” and not “trial.” “Court action” has a much broader scope than does “trial.”

This issue was later addressed in MVA v. Weller, 390 Md. 115 (2005). When examining the plain language of § 16-205.2(c) the Court of Special Appeals found the term “court action,” to be clear and unambiguous.

A court is defined as “a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice.” BLACK’S LAW DICTIONARY 378 (8th ed. 2004). The General Assembly specifically defines Maryland courts in § 1-101(c) of the Courts & Judicial Proceedings Article, as stated above. An “action” is defined as “a civil or criminal judicial proceeding.” BLACK’S LAW DICTIONARY (8th ed. 2004). Thus, a “court action” is a proceeding in the Court of Appeals, the Court of Special Appeals, Circuit Court for a county or Baltimore City, District Court of Maryland or an Orphans’ Court. An administrative hearing before an ALJ, pursuant to § 16-205.1, or any hearing before an administrative agency does not fall within this field. Such a hearing, pursuant to § 16-205.1, does not take place in one of Maryland’s enumerated “courts.” It is an administrative proceeding and not a “court action.” … The evidentiary hearing in Harmon took place in the Circuit Court. It arose out of and was part of a criminal court proceeding. Thus, it was a court action. Emphasis added.

3. The results of the preliminary breath test may be used as evidence by a defendant in a court action;

Here is where they really stuck it to us. If the suspected impaired driver takes the PBT and the result is .05 or below, the odds are great that the defense is going to introduce the results at trial as evidence that their client wasn’t impaired. If the result is .07 or above, most likely the defense will not introduce the results, though with a jury—and depending upon the result—it could still be beneficial to the defense if the goal is to get a “b” conviction for the client rather than an “a.” Clearly the defense holds all the cards in this scenario.

4. The taking or refusal to submit to a preliminary breath test is not admissible in any court action;

If the refusal to take a PBT is not admissible, then, unlike when the defendant refuses to take an intoximeter test, the State is prohibited from arguing consciousness of guilt for that refusal.

5. Any evidence pertaining to a preliminary breath test may not be used in a civil action.

This limitation could certainly prove problematic when it comes to a civil lawsuit alleging false arrest though I have no experience in those type cases. In addition, as previously mentioned, this would also prohibit the introduction of the results at a violation of probation hearing and its relaxed rules of evidence.

Additional Drawback

Another problem with offering the PBT is the possible effect on the impaired driver’s decision to subsequently take the intoximeter test. One would think—though perhaps that is giving drunk drivers too much credit—that a driver who is offered and submits to a PBT and is then placed under arrest would surmise that the results weren’t favorable to him and thus refuse to later take the intoximeter.

Benefits

There are a couple of benefits to the PBT. One clear benefit is that the results are admissible at an MVA administration hearing. That is of great assistance to the State in hearings to revoke or suspend licenses. As previously mentioned, MVA v. Weller addressed this issue:

Examining the plain language of § 16-205.2(c) we find the term “court action,” as used, to be clear and unambiguous. …. [A} “court action” is a proceeding in the Court of Appeals, the Court of Special Appeals, Circuit Court for a county or Baltimore City, District Court of Maryland or an Orphans’ Court. An administrative hearing before an A L J, pursuant to § 16-205.1, or any hearing before an administrative agency does not fall within this field. Such a hearing, pursuant to § 16-205.1, does not take place in one of Maryland’s enumerated “courts.” It is an administrative proceeding and not a “court action.”

Another benefit to the PBT is the assistance it provides to the officer in determining whether a DRE needs to be called. If an officer believes that a suspect is impaired, but just isn’t sure what the impairing substance is, eliminating alcohol as the sole culprit would provide a basis for calling in a DRE.

Conclusion

The point of this blog is not to dissuade officers from offering preliminary breath tests to suspected impaired drivers. What I am suggesting is that officers do their best to base their probable cause to arrest on everything but the PBT. Pay more attention (and provide better detail in your reports) to all your other observations: Poor driving; physical manifestations of impairment (odor of alcohol, flushed faces, disheveled hair and clothing, slurred speech, fumbling for license and registration, lack of coordination, the four P’s, etc.); empty alcohol containers; poor balance; difficulty with field sobriety tests; and statements made by the suspect. If you do a thorough job with all those observations you should already have the requisite probable cause. Too often the PBT is used as a fallback to good police work. Once you have conducted a thorough investigation and have developed probable cause, you can then offer the PBT and be able to testify truthfully that you did that only for the benefit of the administrative law hearings. And include that in your report!

Just remember that a PBT is not a substitute for a half-hearted investigation. If you have done your due diligence, but still feel that you need the PBT to make the final decision to arrest, then by all means do so. Just remember that that arrest, without an accompanying intoximeter result, is much more difficult to prove in court.

AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT.