Anyone who has either experienced DUI or BWI charges, or who has had a friend or colleague experience DUI or BWI charges, probably wondered why were there two types of breath tests?  

The first breath test an individual facing DUI or BWI charges experiences is called the PBT — or preliminary breath test.  Sometimes this is also referred to as the “portable breath test”, because it’s a hand-held unit that officers carry in their squad cars or boats and it’s administered on the road side or in the boat, before an officer places an individual under arrest for DUI or BWI, but after an officer has stopped a car or boat.

The PBT is rarely used as evidence against an individual for the purpose of charging him or her with DUI or BWI.  Instead, the PBT is used by the officer to determine whether he has probable cause to arrest an individual with DUI or BWI in order to bring the individual into a police station and administer the evidentiary blood alcohol concentration test.

It is NOT a crime to refuse the PBT.  However,  an officer may use an individual’s refusal of a PBT as probabe cause to arrest the individual for DUI or BWI.  The statute that governs how and when a PBT can be used is located at Minn. Stat. 169A.42, and can be found here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.41

The “evidentiary blood alcohol concentration test” is a breath, urine or blood test.  When it is a breath test, the Intoxilyzer 5000EN machine is used.  Lately, there has been a lot of coverage of the challenges in district court in Minnesota to the Intoxilyzer machine.  You may have heard some of the buzz regarding “Source Code Motions”.  For more on what the source code is and why it was challenged, check out the in-depth article here on our website: http://www.kanslaw.com/intoxilyzer-500en.html

The statute that governs how and when the evidentiary chemical tests can be used is Minn. Stat. 160A.51, and is located here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.51

The evidentiary chemical test is the breath test that individuals are required to submit two breath samples.  This can be confusing, given the way Statutes 169A.41 and 169A.51 are written.  The PBT does not have to be administered twice — and in fact, rarely is.  However, the PBT is the less reliable test and the test that is not used as evidence to charge an individual with DUI or BWI.  The evidentiary test, if a breath test, requires two breath samples, and this is to the individual’s advantage because the way the law is written, the police officers have to take the lower of the two readings and they have to round off the third decimal place, which can result in a lower score.  For example, if an individual blows a 0.099 on the first try, and a 0.121 on the second, the reading that is officially recorded is 0.09, because that is the lowest reading, rounded off.

It is important to remember that the evidentiary chemical test is the breath or urine or blood test to which an individual cannot refuse to submit without facing additional charges.  This is also known as Minnesota’s Implied Consent Law.  To read the statute that discusses the consequences of refusing the evidentiary test, click here: https://www.revisor.leg.state.mn.us/statutes/?id=169A.52

One of the unintended side-effects of the success of Minnesota DUI lawerys’ challenges to the Intoxilyzer Source Code is that some police stations are now administering only urine and/or blood tests when individuals are arrested for DUI or BWI.  Because urine and blood tests have to be sent into the Minnesota Bureau of Criminal Apprehension’s lab to be analyzed, the dramatic increase in the number of these tests being sent to the lab have created a back log.  Individuals who have been arrested for DUI or BWI and given urine tests can be told they have to wait 3-6 weeks for the results of their chemical test.

During this holding period, though, an individual can still be charged with driving or boating under the influence of alcohol and still be given a court date for arraignment.  Therefore, it is a good idea to contact a Minnesota DUI lawyer as soon as an individual has been arrested for DUI or BWI, even if charges haven’t been finalized yet, because the wait time for the urine or blood test results does not stop the clock from ticking on the criminal process that is set into motion by an arrest.