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People v. Booker: Can You Use a PBT as Evidence for Cases Besides Drunk Driving?

November 14, 2016 DUI/OWI/DWI

The Court of Appeals in People v. Booker answered the question of whether a preliminary breath test (PBT) may be used as evidence against a person in cases that don’t involve a drinking and driving charge. In a drunk driving case, the results of a PBT are cannot be used as evidence except for in limited situations.

The Court decided that the results of a preliminary breath test may be used as evidence in cases other than drunk driving cases.

Facts of the Case

The Defendant was charged with possession of a firearm while under the influence of alcohol. The Defendant brought a pre-trial motion challenging the use of the PBT as evidence in the trial, citing the drunk driving’s law treatment of the PBT as evidence.

The Law

PBTs are generally not admissible in drunk driving cases. MCL 257.625a states that the PBT may be used as evidence only in certain situations;

  • To assist a court in determining a challenge to the validity of an arrest
  • As evidence of a Defendant’s breath alcohol level, if offered by the defendant to rebut testimony elicited on cross examination of a defense witness that the defendant’s breath alcohol level was higher at the time of the charged offense than when the test was administered
  • As evidence of the breath alcohol level, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant’s breath alcohol content was lower at the time of the charged offense than when a chemical test was administered

As you can see there are limited grounds for the admissibility of the preliminary breath test during a trial. In drunk driving cases, the second test the driver takes, either a breath or blood test, is used as evidence of the person’s alcohol level.

The Court’s Decision

The Court ultimately ruled that evidence gained from a PBT could be used in a trial for the broader purpose of showing a person is intoxicated or under the influence.

The Court looked at the statute for possession of a firearm while under the influence. The law states that only the “collection and testing” of a blood samples and nothing more will be in compliance with the requirements of the motor vehicle code drunk driving laws. In addition, the rules governing admissibility of the PBT at trial specifically state that the rules apply only to operating while intoxicated type crimes, and not to other crimes.

Call ArborYpsi Law

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a DUI Lawyer in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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