PBT Refusal Another charge. Another real RESULT.
Location: Sheboygan, Wisconsin
A Recent Pretrial Issue in Sheboygan:
I was working on a case in Sheboygan County Circuit Court and the State wanted to use my client’s choice not to submit to a preliminary breath test against him at trial. My client was facing an OWI 3rd charge. He had been pulled over and asked to perform standardized field sobriety tests and following those tests the officer asked my client to submit to the preliminary breath test (PBT); my client chose to exercise his rights and declined to provide the sample.
The issue at hand was not entirely straightforward, a PBT result cannot be used at a trial against a defendant because the courts have deemed the device is not accurate enough to be used as an evidentiary test. On the other hand, if a person refuses to take an actual evidentiary test (whether that is a test of their blood or breath test via an intoxilyzer) that refusal has been deemed eligible to be used as an indication of consciousness of guilt. Essentially the State wanted to be able to argue that my client knew he was drunk and the reason he did not want to blow into the PBT was because he knew he was drunk. There are two main problems with that argument. First, since the result cannot be used against my client, then not providing something that cannot be used at trial anyway should not hurt my client. Second, submitting to a PBT has been deemed a choice by the courts and using someone’s legal choice against them is problematic.
Ultimately, I argued those major problems to the Judge and equated the use of choosing not to submit to a PBT as using someone’s right to remain silent against them in a unique situation where even not remaining silent could not have been used against them. The Judge found in our favor and agreed that exercising a constitutional right to remain silent could not be used by the State to try and argue that my client knew he was guilty. The State was not able to use my client’s refusal to submit to a PBT against him at trial.
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