Recent case from the Missouri Court of Appeals, Southern District, holds that consensual contact with police can result in arrest and although a portable breath test (PBT) may not get used for proof of blood alcohol content (BAC) it can be used for proof of probable cause.

The Defendant argued the following on appeal: (1) the arresting officer had “no reasonable suspicion to detain” Defendant; (2) the arresting officer had “no reasonable suspicion to extend his nonconsensual detention” of Defendant; (3) there was “no probable cause to arrest” Defendant; (4) the Horizontal Gaze Nystagmus (HGN) test “should not have [been] admitted” because “the test was not performed properly”; and (5) the Portable Breath Test (PBT) “should not have [been] considered” because “law enforcement had wrongly assured [Defendant] the PBT would not be used against him[.]”  Finding no merit in any of these points, appellate court affirmed the lower court.

The opinion lays out that generally, there are three categories of police-citizen encounters: (1) a consensual encounter; (2) an investigative detention requiring only reasonable suspicion based upon specific articulable facts; and (3) an arrest requiring probable cause.

In this case, the driver consented to contact with police officer when driver pulled over in front of officer’s car to let passengers out.  Even without any suspicion of criminal activity, the Appellate Court said the officer was free to inquire of driver about those events and he did. It was at this point that the officer observed signs of the driver being intoxicated. This observation gave the officer reasonable suspicion of criminal activity that supported his investigative detention of the driver.

After the driver pulled himself over and two persons exited the vehicle, the officer who was sitting in his car behind them, exited his vehicle. He then heard the one of the passengers tell the other to get back into the vehicle, saying: “We’re both drunk, and we want to go home.” 

Officer ordered the two to get into their car, and he approached the driver. The driver stated his two passengers had been in an argument and that they had been drinking at a bar.

The Officer then observed (1) an immediate smell of intoxicants on Defendant’s breath; (2) Defendant’s eyes were glassy and bloodshot; and (3) Defendant’s “speech was a little bit slurred.”

When asked, the man admitted to drinking four drinks of Crown Royal and probably was over the legal limit.  The officer asked the man to do a PBT test but the driver wanted him to do field sobriety tests. The driver failed the FST and was asked again to blow for the PBT. The driver agreed and blew a 0.197, well over 0.08 legal limit.

The man was charged with a DWI and convicted.  The Appellate Court, on Point 1, held that there was sufficient evidence of intoxication by the observations and the failed FST tests the man took. Point 1 was denied.

The Defendant, as mentioned above on Point 5 of his appeal, argued it was improper to use the PBT for probable cause against him because it was wrongly obtained.  The officer gave the Defendant wrong information saying several times the results of the PBT can’t be used against him.

After the Officer conducted field sobriety tests, he again asked Defendant to take the PBT.  Here’s how the exchange with the officer went:

Officer 1:  “Let me ask you, will you take this PBT test for me real quick?”

 Defendant:  “I’m going to be totally transparent with you.  I think I’m a little over the legal limit….”

 Officer 1:  “Hey man, here’s the deal.  It was a simple yes or no question.  Like I said, it’s not admissible in court. … Will you take the test for me real quick?”

 Defendant:  “Yeah.” ….

 Other officer 2, after explaining how to take the PBT:  “It’s either positive for alcohol or negative for alcohol.”

 Defendant then complied and took the PBT.

The Defendant argued to the Appellate Court that the trial court should not have considered any evidence concerning, nor the results of, the PBT because the officers wrongly assured Defendant several times that the PBT would not be used against him and defendant relied upon those statements to his detriment.

However, the Appellate Court said that the officers’ statements were true and not a lie. PBT results cannot be used to show a blood alcohol content (BAC) level but they can be used to show probable cause to arrest or as exculpatory evidence.   The Court said they saw no evidence that the trial court used the PBT result to prove BAC level.  And the only reason the Defendant learned about what his PBT level was, was because he asked the officers for the information.  And finally, there was no need for the trial court to rely upon the PBT result because the breathalyzer result from the police station test established that Defendant’s blood-alcohol content was .139, which is above the .08 legal limit.

In summary, the PBT result was not used for proof of his BAC but it can be and was used for showing probable cause.  In the end, the lower court’s decision was affirmed on appeal.