Section 16 - 205.2: Preliminary Breath Test 

In plain English - first of all I will explain this section of the law in plain English and then will quote the law to you. This is one of the most confusing areas for those who are charged with DUI or who have questions about it.

      Perhaps, a more accurate name for the Preliminary Breath Test would be preliminary arrest test.

      The police request this test when they are not "quite" sure they have arrested a " drunk " driver. It is a Breathalyzer test given in the field at the scene of the initial stop of the suspected DUI driver. This is totally a voluntary test - you do not have to take this test. Please note farther that the results of this test - good or bad - are not admissible in court for the state, but may be used by the defendant. 

Should one take this test? As a general rule the answer would be yes. I realize that the initial thought might be that if the officer is not sure if one is driving DUI or not, why then, take a test which could cause the officer to arrest you. Here's why you should take the test - in 36 years of having handled probably close to a thousand of these cases, I have never had nor even heard of someone refusing this test and not being charged. I have heard of some people, although not many, who have passed this test and were not charged. The public operates under the misassumption that if one refuses this test or for that matter the one that counts, at the police station (discussed elsewhere) that there is no evidence against them. This is not correct. Once you are at the station for the breathalyzer that " counts" you are already under arrest and even if you " blew" a zero on the breathalyzer you still have to go to court for this charge. At the point you are arrested the officer has already decided, rightfully or wrongly, that you are DUI. He will testify as to your results of field sobriety tests given, voice patterns, alcohol on breath etc.

      Again, not only have I never heard of someone refusing the Preliminary Breath Test and not being charged, but amazingly, I have never heard of someone reusing this test and then taking the one at the police station, and passing same. The police seem to be fairly accurate in their opinion as to weather or not someone is DUI. Please note that my opinion and thoughts as to weather one should take the test that " counts " is elsewhere in this website

Note farther that the taking of this preliminary test does not relieve one of the consequences of taking the Breathalyzer at the police station. 
 

Section 16 - 205.2: Preliminary Breath Test 

(a) A police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while under the3 influence of alcohol or while impaired by alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a preliminary breath test to be administered by the officer using a device approved by the State Toxicologist. 

(b) The police officer requesting the preliminary breath test SHALL ADVISE the person to be tested that neither a refusal to take the test nor the taking of the test shall prevent or require a subsequent chemical test pursuant to 16-205.1 of this article. (Discussed elsewhere) 

© The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made and may not be used as evidence by the State in any court action. The results of the preliminary breath test may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action. Any evidence pertaining to a preliminary breath test may mot be used in a civil action? 

(d) Refusal to submit to a preliminary breath test shall not constitute a violation of 16-205.1 of this article and the taking of the preliminary breath test shall not relieve the individual of the obligation to take the test required under 16-205.1 of this article if requested to do so by the police officer.