Are Portable Breath Tests Admissible?

Not at Trial!

Based on Oklahoma law and legal precedent, the primary legal argument for suppressing a portable breath test (PBT) in a DUI trial is that the results are inadmissible as a matter of law to prove intoxication or a specific blood alcohol concentration (BAC).

A defense attorney would file a "Motion to Suppress" or, more commonly, a "Motion in Limine" (a motion to prevent the prosecution from even mentioning the PBT results at trial) based on the following key arguments:

1. PBTs are Not Evidentiary Instruments

The central argument is that Oklahoma law distinguishes between preliminary, roadside screening devices (PBTs) and the official, evidentiary chemical tests (like the Intoxilyzer 8000) administered at a police station or detention center.

• Limited Purpose: PBTs are legally intended for one purpose: to help an officer establish probable cause to make an arrest. They are screening tools, not diagnostic instruments.

• Scientific Unreliability: The results are considered inherently unreliable for evidentiary purposes. Oklahoma courts have recognized that PBTs are not on the list of approved evidentiary breath-testing devices by the Oklahoma Board of Tests for Alcohol and Drug Influence (BOT).

2. Lack of Scientific Foundation (Unreliability)

A motion to suppress would detail the numerous, well-documented reasons why PBTs are scientifically unreliable, and therefore their admission would be highly prejudicial to the defendant. These reasons include:

• No Standardized Calibration: PBTs are not subject to the same rigorous calibration, maintenance, and certification standards as the evidentiary Intoxilyzer machines.

• Susceptibility to Contaminants: PBTs are highly sensitive to "mouth alcohol" and other interfering substances, which can create a falsely high reading. This can be caused by:

  • Recent consumption of an alcoholic beverage

  • Mouthwash or breath spray

  • Cough drops

  • Burping or acid reflux (GERD)

• Environmental Factors: The results can be skewed by ambient temperature, humidity, and radio frequency interference.

• Lack of Observation Period: Officers administering a PBT in the field do not conduct the mandatory 15-minute observation period required for an evidentiary test. This period is crucial for ensuring the subject's mouth is free from contaminants.

3. Prejudicial vs. Probative Value

The legal argument, rooted in the Oklahoma Evidence Code, is that even if the PBT result had any minimal "probative" value (tendency to prove a fact), that value is substantially outweighed by the danger of unfair prejudice.

• Prejudice: A jury would likely be confused and give the PBT result the same weight as the highly regulated, scientific test from the police station. They might see a number and immediately assume guilt, without understanding the device's inherent flaws.

• Probative Value: Since the PBT result is not a legally recognized measure of BAC, its only probative value would be to show the mere presence of alcohol, which is not illegal. Its value is minimal compared to the high risk of prejudice.

Author: Brian J. Boeheim

Brought to you by: Boeheim Freeman Law - 616 S. Boston Ave. - Tulsa, Oklahoma - 918-884-7791

Saving Clients over $100,000 in Fines

Supreme Court and the Eighth Amendment

Since the Supreme Court unanimously decided the Eighth Amendment applies to the States and not just Federal cases, prohibiting excessive fines and fees especially when State agencies seek to seize property or other assets from individuals charged or convicted of a crime, Boeheim Freeman Law has been able to reduce or eliminate over $100,000 in fines for our clients.

The case before the Supreme Court, Timbs v. Indiana involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pled guilty and was sentenced to one year of house arrest and five years of probation. The Court suggests that it became excessive when the State of Indiana seized his Land Rover, which was purchased with his father's life insurance payout, not with the proceeds of drug sales. The State claimed that they could seize the vehicle because it had been used to commit a crime.

Rule 8 Hearings

At Boeheim Freeman Law, we have been moving the courts for Rule 8 Hearings on all plea deals. This is a hearing where the Judge inquires of the Defendant what physical injuries or ailments would prevent them from working. The Judge also inquires as to the Defendants ability to pay fines and costs due to indigence and pre-existing financial obligations. It is then determined whether, under the circumstances, the Defendant can pay or the fines would be considered excessive on-going punishment.

Conflict of Interest

Local government uses fines and fees as a means to raise revenue, and that creates a perverse conflict of interest between the bureaucracy and residents of the community. Timbs v. Indiana points out how ridiculous overly burdensome fines and civil asset forfeiture can be when abused. Many times the fines and the confiscation of property only hurts the families left behind when a defendant gets convicted and goes to prison. This inevitably propagates a cycle of crime, when a family is left with very few options and bills to pay.

Supreme Court Has Spoken

The Supreme Court and Justice Ginsberg have spoken: Excessive fines are unconstitutional, and civil forfeiture is an additional fine to those who are convicted. If you have been served with a civil forfeiture in connection with a criminal case, please give Boeheim Freeman Law a call at 918-884-7791 and let us help you fight for your constitutional rights.

Women In Recovery Graduation

Graduation

This past Thursday evening I had the privilege of watching the Women in Recovery (WIR) graduation event. This was very special because of it was the 10th anniversary of the WIR program, and we had three (3) of the graduates as clients. (25% of the graduating class) It is a wonderful thing to see how far these courageous women have come, and what an inspiration they are to the next group coming through the program.

Women In Recovery

Women in Recovery (WIR) is an intensive outpatient alternative for eligible women facing long prison sentences for non-violent drug-related offenses. Operated in partnership with the George Kaiser Family Foundation, WIR works closely with the criminal justice system and various community partners to ensure program participants receive supervision, substance abuse and mental health treatment, education, workforce readiness training and family reunification services.

Hard Work

The women that go through this program have to be committed to doing the work necessary to battle their demons. The demons of their addiction, the demons of their past, and the demons of a still uncertain and challenging future. The program provides them with the opportunity to gain skills to stay sober, and cope with the challenges life, but in the end it is their commitment to being a better version of themselves that will make them successful for the rest of their lives.

Proud of our Contribution

We at Boeheim Freeman Law are proud to have helped so many women get into this great program, and stay in the program. It isn’t always easy. Sometimes it takes a great deal of persuasion to get the right parties to agree to give this individual a chance and sometimes a second chance. Too often the DA’s office objected to their entry and demanded prison time for these women who clearly had addiction issues. We overcame those objections and with the hard work and commitment of our clients, the DA’s office was proven wrong. In the past few graduating classes we have had women the DA’s office fought hard to send to prison. One in particular, completed the program sanction free, which is nearly impossible to do. Her hug and whispered “thank you” reminds us how important it is to continue to fight for both women and men who suffer from addiction and mental health issues, so they have an opportunity to get help and not just have their liberty taken.

Valuable Part of Society

Congratulations to the current graduating class and to all of the past graduates who work every day to be the best version of themselves. You should be very proud of yourselves!

Author: Brian J. Boeheim

Boeheim Freeman Law - 918-884-7791