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Are Breath Tests Admissible in Court?

August 23, 2016


Dean Contover and Attorney Mike Bowser of Bowser Law discuss what breath tests are and under what circumstances they may or may not be admissible in a New Hampshire or Massachusetts court of law.

Dean: In regards to taking a – what’s that?

Mike:  Breath test.

Dean: Breath test. That’s what I was looking for.

Mike: There are two breath tests.

Dean: As you can see, every time I had that problem, so I want to . . ..

Forms of Breath Tests

Mike: There are two forms of the breath test. One is called the PBT, and PBT stands for Preliminary Breath Test or Portable Breath Test, and that’s the handheld device. It’s about the size of a smart phone. It has small strides of fuel cell device. It’s a single test. And they’ll say, “Will you take this test?”  And if you submit to that PBT in Massachusetts, it’s like a fourth or fifth field sobriety test. The officer can use it, look at the results, and admit in the system in making his arrest decision, but it’s not admissible in a court room against you.

Dean: How?

Mike: In the results, whether you refuse the PBT, or take it, over a 0.08%, there is no impact on your driver’s license.

Dean: Why is that?

Mike: Because it’s a preliminary, portable, less accurate, it’s not . . ..

Dean: It’s not calibrated.

Mike: Not to the extent that the device at the police station or the barracks. That’s the second level, that’s Intoxilizer Alcotest. It’s called, actually, Draeger Alcotest 9510 in Massachusetts. That particular device, that has legal consequences.

Legal Consequences for Being Over the Limit or Refusing Breath Tests at the Police Station

Mike: If you are over the legal limit, above 0.08% at the station, on that machine, your license would be revoked for 30 days. If you refuse that test at the station, that has a legal consequence.

It triggers what’s called the CTR – Chem Test Refusal – through the Registry, and that Chem Test Refusal, based on your prior record could be 180 days, three years, five years, or lifetime. If you have three priors under Melanie’s Law in your lifetime, and you refuse a breath test, your license is revoked for life, and the only way to get it back is to be acquitted, and found not guilty on the underlying OUI.

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