Mar 292009
 
Authors: Rob Lowrey

Q: Do I have to blow into the portable breath tests officers bring out at parties or during traffic stops?

A: No. A Portable Breath Test, or “PBT,” is the small testing machine officers carry in their cars. These types of tests are ALWAYS voluntary.

Any breath alcohol test conducted by the police is a search subject to the protection of the Fourth Amendment to the U.S. Constitution.

If you have not been driving, you are not required to provide any breath sample without a search warrant. Practically speaking, officers are extremely unlikely to get a search warrant for a breath sample to prove underage alcohol consumption. Your best bet is to keep a low profile and avoid police contact to the extent possible.

If you are accused of Minor Consumption and have had nothing to drink, you should request a PBT. Otherwise no one, especially a driver, should ever blow into a PBT.

Some officers believe they can order or force you to take a PBT if you are under 21 years old, but they are simply wrong. If an officer sticks a PBT in your face at a party and says, “Blow in this,” you should politely refuse unless you have had nothing to drink.

If you have been driving, other serious considerations come into play. PBTs are still voluntary, and officers are required to tell you that you can refuse, even if you are under-21. A driver should never blow into a PBT.

If you are actually arrested on suspicion of DUI/DWAI or Underage Drinking and Driving, you will have to provide a sample of breath or blood or you will lose your license for at least a year. That breath test, however, is the test on the big machine at the police station, not the voluntary PBT at the scene of the actual traffic stop.

You should also know, if you are involved in an accident where someone is injured or killed (the number one reason to not drive after drinking) officers are allowed to take forced involuntary blood samples to determine your level of sobriety.

So, if you are going to drink, do not drive and know that you are never required to blow into a portable breath test.

Rob Lowrey is a staff attorney for Student Legal Services at CSU. SLS’ column appears biweekly Monday in the Collegian. Send your burning legal questions to kathleen.harward@colostate.edu. Letters and feedback can be sent to letters@collegian.com.

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