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Overland Park, KS 66210

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Roth Davies, LLC

The preliminary breath test is a small, portable breathalyzer which law enforcement keeps in their patrol vehicles. This is usually the test officers will request a person complete after the other Standard Field Sobriety Tests have been administered. This machine is designed to determine a person’s BAC. Kansas has approved many different breath test machines, and each has their own maintenance and use procedures. However, the preliminary breath test is not admissible in court to determine if they were over the legal limit, they are only used to establish probable cause to arrest them for a DUI. The preliminary breath test is not the same as the evidentiary breath test and does not carry much weight in court as compared to the Intoxilyzer 9000.

How do you beat the Preliminary breath test?

You don’t need to beat the PBT. The PBT results will not evidence during your criminal case. Law enforcement will never be able to tell a jury you took a PBT and its results showed you were over 0.08% BAC. Because of the PBT’s inaccuracy, their results are not admissible in court. There is a multitude of case law which shows judges not allowing PBT results into evidence.

What must an officer do before asking an individual to submit to a PBT?

Before the officer can ask the suspect to submit to a PBT, they must have already established reasonable suspicion that the suspect is impaired. The individual must also be given three warnings.

  1. You do not have the right to consult with an attorney before taking the test.
  2. Failure to give a sample or refusal of a PBT is an infraction.
  3. You may be subject to further testing.
What happens if you refuse the PBT?

Nothing. No fine. No citation. Nothing will happen to you. The refusal can’t be used against the suspect in court to show a negative indication that they were driving under the influence.

What PBTs are approved in Kansas?

K.S.A. 65-1, 107 gives the Kansas Department of Health and Environment the authority to approve PBT devices that law enforcement can use. The list of devices which are approved for use are outlines in the Breath Alcohol Program Training Manual which is complied and approved by the Kansas Department of Health and Environment.

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