DUI Preliminary Breath Test In Nevada
Reader’s Question:
I have been arrested a long time ago for DUI here in Nevada but the case didn’t proceed to trial because it was dismissed. During the stop, the officer administered a preliminary breath test to me. Had the case gone to trial, will the preliminary breath test be admissible in court?
Latoya
Spring Valley, NV
Simply stated, the preliminary breath test (PBT) is a hand-held breath test device. The PBT is often used in field sobriety testing along with other physical roadside tests. The PBT alone could provide grounds for probable cause if admitted and given weight but it is very difficult for the state of Nevada to get results admitted to evidence, so it is generally not a big issue.
The PBT results is usually barred “in any prosecution” for DUI. A lot of novice DUI lawyer are shocked to learn that a pre-trial motion is not a “prosecution.” As a result of this, the PBT could be used in the pre-trial Motion to Suppress. But there are still a huge number of defenses that could be used against the PBT. One of these is that the PBT doesn’t set forth an evidentiary exception to basic rules of evidence and this was simply not an issue before the court. Nevada created an evidentiary shortcut for the admission of the blood test results and of the “official” breath test results but there is no corresponding procedure for the PBT. Had your DUI case in Spring Valley, Nevada gone to trial, the prosecution would have had a difficulty getting the PBT results admitted as evidence in court.
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