Intro
In the DUI cases we handle, I’m seeing DUI officers make a certain mistake more and more often lately. In fact, this mistake is so common with a few Mississippi law enforcement agencies that you could say it might even be their policy. That mistake centers on the improper use of and reliance upon the Preliminary Breath Test, or PBT. The officers are using it at the wrong stage of the DUI investigation and creating reasonable doubt left and right as a result.
What is a PBT?
Before I go any further, let me explain what a PBT is. The PBT, which we sometimes call a handheld, is a small device about the size of a cell phone. It is a portable breath testing machine. Now, the Intoxilyzer is the larger, mounted device that is the one used after arrest to get a person’s BAC. That’s not what we’re talking about here. The PBT is smaller and less reliable. The numbers it gives are not admissible in court in Mississippi. It is just an indicator that there is alcohol in a person’s system.
NHTSA Training
DUI officers across the country are all taught the same way, using training manuals created by the National Highway Traffic Safety Administration, or NHTSA. The methods of DUI detection taught in the NHTSA have been developed over a half century of at least somewhat scientific study. These investigative methods have very specific rules to them, and when those rules are followed, NHTSA says the results can provide probable cause to arrest someone for DUI.
The manual that each officer is trained on, which we call “the NHTSA manual,” is also very specific about when an officer is to use the PBT. The current NHTSA manual, which was published in 2023, tells us SIX different times that the PBT should be used AFTER the officer completes the Standardized Field Sobriety Tests. Not BEFORE those tests, but AFTER those tests.
Why is that? The officer is to properly use the three Standardized Field Sobriety Tests – the HGN test, the Walk and Turn, and the One Leg Stand – to figure out whether the driver is impaired. AFTER the officer has established that the driver is impaired, he THEN uses the PBT to gather evidence that alcohol is the reason for the impairment that he has already established. This specifically is spelled out on Page 18 of Session 7 in the NHTSA manual.
The Common Mistake in DUI Investigations
Too often we are seeing officers asking “have you had anything to drink tonight?” and if the answer is yes, sticking the PBT in the driver’s face and just saying “blow in this.” Then they are making the arrest with that as the basis. That is directly contrary to the NHTSA manual and turns DUI investigation upside down. There is no evidence of impairment, and NHTSA itself says that is not what an officer should base a DUI arrest on.
Conclusion
If you or a loved one are facing a DUI in Mississippi, reach out to us and let us help you. DUI cases are not nearly as cut and dried as people make them out to be, and in fact they can be extremely complex. The consequences can be extreme, too. But don’t worry. Our firm has decades of experience representing people in courts across Mississippi. From the Coast to the Jackson Metro to the Memphis suburbs and everywhere in between, we’re here to help. Give us a call today at the Eichelberger Law Firm and let us go to work for you.