7.4 THE PRELIMINARY BREATH TEST
7.401 Use Governed by Statutory, Administrative, and Constitutional Law.
The preliminary breath test (PBT) can be an evidentiary quagmire. If the results are admitted and given weight, they alone can provide grounds for probable cause. But it is difficult for the Commonwealth to get the results admitted into evidence. By statute, 1251 the test is not admissible at trial, although the courts have interpreted the statute to permit its introduction at a suppression hearing or other pretrial hearings where probable cause, rather than guilt or innocence, is at issue. 1252
The PBT is administered with a hand-held breath testing device. The following devices have been approved by the Department of Forensic Science: (i) the ALCO-SENSOR, ALCO-SENSOR II, ALCOSENSOR III, ALCO-SENSOR IV, ALCO-SENSOR VXL, ALCOSENSOR FST, and ALCO-SENSOR FST manufactured by Intoximeters, Inc., St. Louis, Missouri; (ii) the CMI SD 2 and INTOXILYZER 400PA, manufactured by Lion Laboratories, Barry, United Kingdom; (iii) the CMI SD 5, INTOXILYZER 500, and INTOXILYZER 800 manufactured by CMI, Inc., Owensboro, Kentucky; (iv) the LIFELOC PBA 3000 (when used in the direct sensing mode only), LIFELOC FC10, LIFELOC FC10Plus, and LIFELOC FC20, manufactured by Lifeloc Inc., Wheat Ridge, Colorado; (v) the ALCOTEST 5510, ALCOTEST 5820, ALCOTEST 6510, ALCOTEST 6810, and ALCOTEST 6820, manufactured by Draeger Safety Diagnostics, Inc., Durango, Colorado; and (vi) The ALCOVISOR JUPITER, ALCOVISOR MERCURY, and MARK V, manufactured by PAS Systems International, Inc., Fredericksburg, Virginia. 1253
Counsel should be familiar with administrative agency rules governing the use of the PBT. For example, the devices cannot have a systematic error rate that exceeds 10 percent. 1254 This, of course, calls into doubt any reading of .08 percent. The test equipment must be maintained pursuant to the manufacturer's instructions and procedures, 1255 and operated in a manner consistent with the manufacturer's manual. 1256 The manual of the device most commonly used in Virginia, the ALCO-SENSOR IV, requires accuracy checks at least every 31 days, but most Virginia law enforcement agencies do not test them that frequently. It is always productive to ask the officer what type of PBT device was used and specifically what the use and maintenance instructions and procedures are. If the officer does not know, how can the government comply with this rule? There is no shortcut to getting the PBT into evidence as there is for the results of the Intox EC/IR II test, which is administered later at the police station. 1257
7.402 Admission at Pretrial Hearings.
The Virginia Code bars the use of the PBT results "in any prosecution" for DUI. 1258 Many attorneys and almost all defendants are surprised to learn that, because a pretrial motion is not viewed as a "prosecution," PBT results may be used in the hearing of a pretrial motion to suppress. 1259
The Court of Appeals addressed this issue in Stacy v. Commonwealth. 1260 In Stacy, the appellant challenged the trial court's admission of a PBT in a pretrial motion to suppress. Stacy asserted that because section 18.2-267 of the Virginia Code barred the use of the PBT in a prosecution, it was improper to admit a PBT result in a suppression hearing. The Court of Appeals, in upholding the trial court, narrowly defined the meaning of prosecution, as the term is used in section 18.2-267, and held that the prosecution "does not include a pretrial suppression hearing." 1261 There are other defenses to the PBT. First, Stacy does not set forth an evidentiary exception to the basic rules of evidence; this was not an issue before the court. Although Virginia has created an evidentiary shortcut for the admission of the "official" breath test results 1262 and of the blood test results, 1263 there is no corresponding procedure for the introduction of the results obtained from...
