"Jon," an able Virginia criminal defense colleague said to me, "sometimes I just concede probable cause to arrest my DWI client, to keep out the preliminary breath test." Why do that? Judges are not allowed at bench trials to consider suppression hearing evidence for the trial/guilt-innocence phase. Then again, even with an experienced judge, how can s/he simply ignore a high PBT (even though the law does not allow the preliminary breath test result "PBT" to be considered for guilt-innocence)? How do we ever get a cat back into the bag, remove a skunk’s stink, or reverse a spot of ink dropped into a glass of soy milk?
Never have I advised a client to concede probable cause, unless s/he is pleading guilty or proceeding on a stipulation of facts sufficient to prove guilt. Recently, I blogged about a Virginia DWI trial victory where the police officer did not remember which PBT machine model he used. Today, I will describe another trial victory challenging the PBT, and the legal authorities available for challenging the admission of PBT results.
In my recent trial victory, the police officer testified to stopping my client’s car for a moving violation, smelling an odor of alcohol, and observing my client’s eyes to be bloodshot and glassy. He testified to my client’s putting his foot own twice during the one leg stand test, stepping off the line three times during the walk and turn test and raising his arms a few times, and not fully following the finger-to-nose test.
Then the prosecutor asked about the PBT result. I objected: "Judge, I object. The law prohibits the PBT result from coming into evidence before the prosecutor proves that the PBT machine model used was approved by the state Department of Forensic Science, that the PBT machine was recently properly calibrated and certified for accuracy, and that the officer told my client that he did not have to take the test. Moreover, my client did not freely an voluntarily take the test, because the officer hoodwinked him into doing so by telling him — as confirmed by the officer’s testimony just now — that the PBT results would not be used in court, which is what the prosecutor is trying to use right now."
The judge nixed my hoodwinked argument, through a fatally flawed reasoning that my hoodwinking argument was precluded by the statutory provision preventing the PBT result from being used for guilt-innocence but not for a trial’s probable cause phase.
Interestingly, the officer did not know the model name of the PBT machine he used. Instead, he said that he was using Officer Perennial’s PBT machine. I objected to any PBT testimony based on the officer’s ignorance of his PBT machine model. The prosecutor at first successfully asked the judge to just let the officer continue to testify, seeing that Officer Perennial was present to confirm his PBT machine model. I replied that Officer Perennial was not at the incident scene, so that the only way that the model could be tied up to Officer Perennial was by both the arresting officer and Officer Perennial identifying this specific machine by something as specific as a serial number.
Multitasking, I reminded the judge that I also had objected to the officer’s failure to tell my client was not required to take the PBT test. Perhaps wishing to "move things along", the judge himself asked the officer: "Did you tell the defendant that he was not required to take the PBT test?" Officer: "No." YOW! That answer seemed akin to the ecstasy of going to heaven.
The prosecutor tried to get out of this quick-drying cement by suggesting the law allowed some leeway here. The judge would have nothing of it. The prosecutor ended his questioning. The prosecutor and I argued whether the remaining evidence established probable cause to arrest my client, after I cross-examined the officer extensively on my client’s actions not only for what the officer characterized as "field sobriety tests" but also about my client’s good coordination at the get-go when he produced his driver’s license without fumbling, paid full time and attention to following the officer’s directions, and did better on the field tests than the officer characterized on direct examination (praised be my having the officer’s police report, which must be guaranteed by Virginia law (not yet a part of the law) for the prosecution to produce before the defense cross-examines an opposing witness in a criminal case).
Had the preliminary breath test come in, the judge likely would have found probable cause to arrest. Here, I reminded the judge that for a probable cause determination, we look at the totality of the circumstances in determining probable cause to arrest, and not just at performance on the officer’s field tests. I pointed out that my client did so well on the field tests that such observations as stepping off the line a bit three out of sixteen times was insignificant, particularly when exhaustion could have explained it at a time when most people were sleeping.
The prosecutor tried to characterize my client’s behavior, alcohol odor and bloodshot/glassy eyes as enough to get probable cause. I, instead, remembered how my calculus professor described derivatives as being like Moses and the mountain, where Moses got so close to the promised land, but never landed there. In that spirit, in responding to the prosecutor’s opposition to my suppression motion argument, I told the judge: "At best for the prosecution, this suppression issue is like Moses and the promised land. Moses got close enough to see the promised land, but never set foot there, never got a chance to wade in the Dead Sea, or to hike the Carmel Mountains." I reminded the judge initially that the Supreme Court in Maryland v. Pringle said that probable cause could not be adequately defined, but if pressed to come close to a definition, it would be "reasonable grounds for a belief of guilt," which is repeatedly a tough level for DWI defendants to overcome.
The judge leaned back in his chair, giving the full reflection that this leaning indicated, and pointed out that the field sobriety tests were not enough to tell him that there was probable cause to believe that my client had violated the DWI laws. That translated into winning against this prosecution!
Here are legal authorities for challenging the preliminary breath test in Virginia and Maryland:
– Va. Code § 18.2-267 requires the PBT machine to be a model approved by the Department of Forensic Science, and for the officer to tell the suspect that s/he does not need to take the PBT test.
– Here is the list of PBT machines approved by the Department of Forensic Science.
– Maryland law precludes an officer from ordering — versus asking — a PBT test to be taken, but does not require the police officer to tell the suspect that s/he is not required to blow into the machine. Md. Transp. Code § 16-205.2.
– Md. Transp. Code § 16-205.2 says that the PBT model must be from a list of makes and models approved by the state toxicologist. The state toxicologist’s regulations provide that "make and model PBT device [among those on the state toxicologist’s list] shall be on the most recently updated Conforming Products List of Evidential Breath Alcohol Measurement Devices published in the Federal Register by the National Highway Traffic Safety Administration of the Department of Transportation." COMAR 10.35.02.04. The most recent such Federal Register list is at 77 FR 35747.