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Thursday, September 18, 2014

DWI Arrest in Charlotte? What is a Portable Breath Test?

SITUATION: 
You have been pulled over by a police officer for DWI. The Officer asks you to exit the vehicle. Suddenly a small device is pulled from the patrol car. Officer asks you to blow in this device. What should you do?

This device is known as a Portable Breath Test- commonly called a PBT. Contrary to what some Police Officers will tell you, this is not the breath device licensed drivers are required to take under North Carolina implied consent laws. Actually, the numerical result of this test is not even admissible in court.

Portable Breath Devices were issued to police officers as a tool to determine whether probable cause exists to arrest a person for DWI. It is just one of several factors
among several others, including field sobriety tests, used in this determination.

In my opinion, police officers have become too reliant on the result of this test during the initial investigation of a DWI in the field. A Court of Appeals case issued just this week essentially reiterated this.

In State v. Overocker, it was held that a positive result for alcohol and admission by the driver that they consumed alcohol was not sufficient probable cause for arrest.

Remember, it is not illegal to drive with alcohol in your system, unless under 21 or in violation of specific terms of probation. It is illegal when drive when that alcohol has impaired your ability to drive safely or your blood alcohol level is .08 or above.

Returning to the questions presented at the beginning of the post- which test is a license driver required to take under North Carolina implied consent laws?

If a driver is stopped by a police officer under suspected DWI, the implied North Carolina implied consent law requires a person to submit to a breath or blood test after probable cause to arrest.
This breath test is usually administered at a police station under regulated conditions or the blood draw is administered at a hospital.

What happens if a person refuses to take this test- that is another post to come later- The DWI refusal.

Criminal Law Updates Provided by The Law Office of Carilyn Ibsen PLLC. (888)542-2427

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