Cedar Rapids Lawyer: Police continue to misuse, misconstrue DUI breath tests
A Cedar Rapids lawyer alleges that local law enforcement officers investigating DUIs are misusing preliminary breath screens, or, PBTs in drunk driving investigations and further misinforming arrestees about whether the portable breath test can be used in court.
David Cmelik, speaking as firm principal of David A. Cmelik Law PLC, said that in some cases, officers tell drunk driving investigation targets that the PBT is a drug detector.
“They say that the PBT will determine whether alcohol, drugs, or a medical issue are causing the impairment they are already seeing.”
Officers must have “reasonable grounds” to conclude a motorist is operating a motor vehicle under the influence to request a preliminary breath screen using the PBT, a portable device under Iowa’s drunk driving law. Cmelik said that the PBT is certified by the Iowa Department of Public Safety to measure only alcohol—not drugs or medical issues.
“Contrary to law enforcement belief, it is not a CT scan or gas chromatography,” added Cmelik. “It doesn’t detect drugs or a medical issue at all—and it isn’t there merely to confirm ‘what they already know.’” Cmelik said that officers' thinking on this subject is a kind of confirmatory bias that excludes the possibility the officers may be wrong about their observations.
But that isn’t the only problem with PBT use the firm identified. Officers investigating Iowa DUIs almost always tell test subjects that the portable breath screening tool may never be used in court. This is legally untrue. Under Iowa’s drunk driving law, the preliminary breath screen “shall not be used in any court action except to prove that a chemical test was properly requested of a person,” according to Iowa Code § 321J.5.
“It’s true that the numerical PBT test result—and even whether the test subject tested ‘positive’ for alcohol—may not be used before the jury on the issue of intoxication, but the jury trial is not every courtroom proceeding in a case,” notes the firm.
For example, prosecutors can, in fact, offer the PBT test result as evidence in a pretrial motion hearing to determine whether the officer had so-called “reasonable grounds” to invoke implied consent.
The firm principal stated that the PBT has become self-fulfilling in a way—so much so that in many investigations, officers grab the portable device and a newly wrapped mouthpiece out of their patrol car before they ever begin testing.
“Their mind is already made up,” the firm said, adding, “sometimes they tell the OWI suspect that the PBT will not even change their decision to make an arrest.” That requires probable cause, however, not just "reasonable grounds" to detain the subject.
But the firm also noted that the field sobriety tests are not intended to establish probable cause to make an arrest. They typically provide the much lower standard of “reasonable grounds” for temporary detention and scientific testing of a breath, blood, or urine sample.
“If officers believe their human observations establish probable cause, the only purported scientific test in the prosecution—evidentiary breath, blood, or urine testing—becomes an afterthought,” the firm said, adding “this is not law enforcement thinking critically.”
The firm also thinks some officers misconstrue the purpose of the Datamaster DMT test—since they believe their subjective observations are the “best evidence.”
“Sometimes officers will say the purpose of the ‘second’ breath test is administrative, or, just for Iowa DOT,” adding that officers play a dual role in the criminal investigation and administrative driver’s license revocation. The driver’s license revocation is usually immediate, since driving is a privilege and the administrative revocation is not part of the criminal penalty. But the breath test result or refusal is still evidence in the prosecution-- the only purported scientific evidence, the firm asserts.
“It doesn’t register with those officers that the second, evidentiary breath test is the only scientific test the prosecutor will likely ever offer in the case—it’s not simply administrative or a ‘matter of formality.’”
The firm stresses that officers are not lawyers-- but that they should be better trained to understand the law and not make snap judgments about OWI suspects. They should resist confirmatory bias and be open to refutation of their own subjective observations, the firm said.
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