What is a Preliminary Breath Test?
A preliminary breath test (PBT) is a test used by law enforcement to determine whether or not an individual is intoxicated. For the most part, PBTs are used in OWI investigations. Knowing the purpose of this test and how it can be used against you is important.
Can I Refuse a PBT in Wisconsin?
The quick answer is, yes, you can refuse a PBT in Wisconsin. Now I want to be clear, I am talking about the breathalyzer that law enforcement may ask you to do prior to being arrested for an OWI. A PBT is different than the official breathalyzer done after arrest. Refusing to submit to that test has significant consequences and will result in a refusal charge. This is an important distinction. Refusing a PBT out in the field is different than refusing the breathalyzer at the police station.
Consequences for refusing a PBT in Wisconsin
If you have ever been pulled over and suspected of operating a motor vehicle while intoxicated you have likely been asked to do field sobriety tests and a PBT. In Wisconsin OWI cases law enforcement can use a PBT to establish the necessary probable cause to make an arrest. The results of the PBT can confirm their suspicion of intoxication, or alternatively, prove them wrong. You do not have to submit to the field sobriety tests or the PBT. However, if you refuse, law enforcement can use that refusal against you. A refusal to submit to the PBT will be used to establish the probable cause to arrest you for drunk driving. There is no legal penalty for refusing a PBT.
Can the cops use the PBT in court against me?
Wisconsin OWI law only allows a PBT to be used to establish probable cause for an OWI arrest. Similar to the field sobriety tests, how you perform on the PBT will determine whether or not you are arrested. So in that regard, yes, they will use the results to justify their arrest. However, law enforcement and the prosecutor cannot use the PBT at trial as evidence that you were impaired. The results of the preliminary breath test are not admissible for any other purpose. That is why law enforcement will request a sample of your breath of blood after arrest.
Is there a benefit to refusing the preliminary breath test?
You have the absolute right to refuse the field sobriety tests as well as the preliminary breath test. These FSTs are subjective tests that are almost impossible to perform as instructed. Similarly, a PBT is not up to the standards of an intoxilyzer machine back at the police station and have not been proven to be accurate. Submitting to these tests may very well lead to your arrest. Declining to participate in the FSTs and the PBT will also likely get you arrested as law enforcement can use your refusal to form probable cause. However, by not performing these tests you may be taking away one tool used by the prosecution to get a conviction at trial.