It may seem like there’s no hope for your DUI case:  the police officers have a breath test result and its over the legal limit.  However, the reality of both preliminary breath test devices and other breathalyzers is that they are often inaccurate, improperly calibrated, and, in certain circumstances,  cannot be used in Court against you. This Q&A gives a quick guide on preliminary breath tests, where officers will obtain a single breath sample using a handheld breath testing device.

What is a PBT Test? In Arizona, officers can capture a sample of your breath for measurement using a handheld device, commonly called a preliminary or portable breath testing device.  During the DUI investigation, officers may ask you to blow into the PBT. The device analyzes your breath for alcohol and returns an estimating number of that person’s blood-alcohol content (BAC).

When can officers ask me to submit to a PBT test? Only when officers have reason to believe that you are driving under the influence can they ask you to take a PBT test. Both the 4th Amendment and the case of Verberg v. Jones states that officers can administer the PBT test only if they have reasonable suspicion that the driver is DUI. 121 P.3d 1283, 211 Ari. 413 (App., Div. 1, 2005). In other words, an officer needs an articulable basis that you are driving impaired to request a breath test.

            State of Arizona ex rel. Hamilton v. City Court of Mesa, and Real Party in Interest Lopresti, 799 P.2d 855, 165 Ariz. 514 (1990) – How the State Gets it Wrong and What Happens When the Courts Believe Them

Michelle L. Behan

            In 1990, the Supreme Court of Arizona took up a case to determine if it was lawful for the State of Arizona to use field sobriety test results as proof a citizen had an alcohol concentration over the legal limit.  A few years earlier, the Supreme Court had decided a case[1] called Blake, where they held it was not permissible for the State to use Horizontal Gaze Nystagmus test results as direct evidence of a driver’s alcohol concentration.  In the Lopresti decision, the Court reaffirmed its prior holding, and then provided direct guidance limiting the testimony of a police officer regarding HGN test results:

1.Is it illegal to drive with marijuana in my system?

See Answer

2.Do I need a lawyer if I am arrested for DUI marijuana?

State ex.rel. Verburg v. Jones, 121 P.3d 1283, 211 Ariz. 413 (App., Div. 1, 2005)

In this case, the Division One Court of Appeals was considering a special action filed by the State, challenging the reversal of a DUI conviction where a trial court had allowed the State to present evidence at trial that a DUI driver had refused to conduct field sobriety tests. Division One overturned the reversal, and held that the refusal to submit to field sobriety tests was admissible at a DUI trial. 

The holding is premised on the assumption that the field sobriety tests are a lawful search when supported by reasonable suspicion that a DUI offense has been committed. The Court of Appeals wrote:

By Michelle Behan, The Behan Law Group

            In Arizona, the penalties for a DUI increase if the driver has previously been convicted of a DUI.  Penalty-enhancing prior convictions are not limited to DUIs that occurred in Arizona.  Under certain circumstances, an out-of-state conviction for DUI can enhance an Arizona DUI.  The penalties for second offense DUIs in Arizona that occur within seven years are harsh, and range from 30-180 days in jail, fines and fees in excess of $3,500, and supervised probation.  A third DUI within seven years is a felony, and will carry a sentence of 4 months -2.5 years in the state prison. 

            Statutory Elements

            In order for a court to determine whether an out-of-state DUI conviction can constitute a prior in Arizona, the court takes a look at the elements of the out-of-state statute the driver was convicted of violating.  If those elements are the same as the elements of the Arizona statute, then the out-of-state prior counts as a penalty enhancing Arizona prior.  In State v. Ault, the Arizona Supreme Court established that the reviewing court must conclude that the foreign conviction includes, “every element that would be required to prove an enumerated Arizona offense.”  157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). 

A year-long investigation by the New York Times determined that breath alcohol tests are untrustworthy. The Times published an article revealing that tens of thousands of breath alcohol tests are scientifically unreliable. In an article titled These Machines Can Put You in Jail. Don’t Trust Them the Times wrote, “Alcohol breath tests, a linchpin of the criminal justice system, are often unreliable.”

The investigation included interviews of forensic scientists, industry representatives, independent experts, defense attorneys, court orders, and internal documents related to breath alcohol devices across the country.  As part of the investigation, the Times determined that there were several reasons why alcohol breath tests were unreliable.

The first reason that the test results are incorrect is due to the design flaws in the machines themselves.  The investigation uncovered that the basic programming of these breath alcohol machines, called ‘source code’ often contained mathematical errors that should have been discovered by even the most simple verification. Manufacturers fought tooth and nail to prevent defense attorneys and courts from gaining access to the source code.

DUI Arrest in Tucson? Breath Alcohol Test? For a long time, the Tucson Crime Lab has known that the breath testing device they use, called an Intoxilyzer 8000, can be off by as much as 11.7%.  The state tried to stop this information from being used in court.  But Tucson DUI Lawyer Michelle Behan, known nationwide as Miss DUI Arizona, together with other defense attorneys just won a three-hearing when a judge ruled to allow this evidence to be used in court to defend someone charged with DUI. This information could radically change your case.

DUI Arrest in Arizona? Blood Alcohol Test? Your test may be challenged if there was an insufficient amount of preservative in the blood tubes. Tucson DUI Lawyer Michelle Behan, known nationwide as Miss DUI Arizona, has learned through her sources that a lot of tubes that were used to draw blood for DUI alcohol tests failed to contain the proper amount of preservatives. There is a recall in effect right now for many of these blood alcohol vials (made by Becton Dickenson). This could render the test results false or invalid. 

Arizona DUI Attorney Michelle Behan recently spearheaded a challenge to the DUI breath alcohol testing program run by the Tucson Police labs. She and others discovered that the breath alcohol tests were off target by an amount that makes some people who receive an #ArizonaDUI, #ExtremeDUI or #SuperExtremeDUI arrests not guilty. 

The TPD DUI crime laboratory is attempting to prevent this evidence from being used in court. Michelle, also known as Miss DUI Arizona,  along with a team of DUI defense attorneys, argued that the truth behind the breath testing must be made public.

DUI checkpoints, or DUI roadblocks, are run throughout Arizona. DUI Checkpoints often receive federal funding for checkpoints run around holidays such as July 4th (Independence Day), Memorial Day, Christmas, Thanksgiving and New Year’s Eve and Day. The roadblocks might pop up for several days or at several locations.

The United States Supreme Court has approved roadblocks but requires that they have several features:

• The roadblock should be well-lit with proper signage and safety cones etc.;
• Stops must be made systematically (such as every 3rd car) and not arbitrarily changed;
• Officers at checkpoints must be given very limited discretion as to what they can or cannot do;
• The purpose of the roadblock must be lawful (such as to catch drunk drivers) and not for the detection of ordinary criminal wrongdoing;
• There must be an operational plan approved by supervisory personnel;
• The location (or site selection) and time must be approved by supervisory personnel;
• There must be advance publicity announcing the checkpoint.

Many times, the police must meet certain minimum arrests or contacts in order to qualify for money from the federal government.

The DUI laws in Arizona are very strict. For a First Time DUI, with a blood alcohol result above .20, also known as an "Extreme DUI,” the statutory punishment is:

• Jail: 45 days (some people may be home detention eligible (after 3 days in custody)).
• Fines: About $3,240, plus jail/home detention costs and $80 monitoring fee.
• Screening and counseling required: Yes.
• Driver's license suspension: 90-day suspension (with a potential 60-day restricted driving period for Arizona license holders after 30 days) or 1-year revocation (with a potential restricted driving period after 90 days upon installation of an ignition interlock device ).
• Interlock: 18 months.

Keep Calm and Call Miss DUI Arizona. The lawyers at The Behan Law Group, P.L.L.C. can help. They will review your charges and often avoid the harsh penalties that you or a loved one face when charged with a DUI. Call for a free consultation at 520-220-5047 now. 

The DUI laws in Arizona are very strict. For a First Time DUI, with a blood alcohol result above 0.15 but below 0.20, it is called “Extreme DUI”:

• Jail: 30 days; home detention eligible (after 2 days).
• Fines: About $2,780, plus jail/home detention costs and $80 monitoring fee.
• Screening and counseling required: Yes.
• Driver's license suspension: 90-day suspension (with a potential 60-day restricted driving period for Arizona license holders after 30 days) or 1-year revocation (with a potential restricted driving period after 90 days upon installation of an ignition interlock device ).
• Interlock: 12 months. 

Keep Calm and Call Miss DUI Arizona. The lawyers at The Behan Law Group, P.L.L.C. can help. They will review your charges and often avoid the harsh penalties that you or a loved one face. Call for a free consultation at 520-220-5047 now.

Recently, Attorneys Michelle Behan and Donald Ramsell co-authored an amicus curiae (“friend of the court”) brief which was filed with the United States Supreme Court on behalf of the National College for DUI Defense (NCDD). This brief was in support of the petitioner in the case of Gerald P. Mitchell v. Wisconsin.

The brief made a number of arguments regarding people’s rights when asked to submit to blood alcohol content (BAC) tests in DUI cases. First, it argued that tests such as blood draws are covered by the Fourth Amendment and that a warrant should be required in order to conduct this type of search. In addition, “implied consent” laws are problematic, since they waive a person’s Constitutional rights to give voluntary consent to a search.

Second, the brief argued that the electronic warrant procedures implemented by the majority of states should be used in DUI cases. The ability to obtain a warrant in minutes makes legislated consent unnecessary and helps avoid the over-broad application of implied consent rules.

The DUI laws in Arizona are very strict. For a First Time Standard DUI, with a blood alcohol result above 0.08 but below 0.15:

• Jail: 10 days (9 can be suspended upon this successful completion of 12 months of unsupervised probation).
• Fines: About $1,500, plus jail costs and $80 monitoring fee.
• Screening and counseling required: Yes.
• Driver's license suspension: 90-day suspension (with a potential 60-day restricted driving period for Arizona license holders after 30 days) or 1-year revocation (with a potential restricted driving period after 90 days upon installation of an ignition interlock device ).
• Interlock device on vehicle: 12 months (with potential eligibility for removal after 6 months).
• Community service: not required.

The lawyers at The Behan Law Group, P.L.L.C. can help. They will review your charges and often avoid the harsh penalties that you or a loved one face. Call for a free consultation at 520-220-5047 now.