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

Oklahoma Courts Step Into the 21st Century

Video Conferencing in the Courtroom

The Oklahoma Legislature has recently taken a big step, with a new statute that allows videoconferencing technology to be used in the Oklahoma District Courts for hearings up to, during, and after trial in both civil and criminal cases.  Prior to this, it was unlawful for videoconferencing to be used in the District Courts of Oklahoma.  There are several minimum requirements; here are a few:

• Everyone who is directly involved, i.e. the attorneys, witnesses, judge, defendant, court reporter, and interpreter, can see and be seen and hear and be heard.

•  Participants shall be able to see, hear, and communicate with each other simultaneously;

• Participants shall be able to see, hear, and otherwise observe any physical evidence or exhibit presented;

• Video and sound quality shall be adequate to allow participants to observe demeanor and nonverbal communications and to clearly hear what is taking place to the same extent as if they were present in the courtroom;

• The location from which the trial judge is presiding shall be accessible to the public to the same extent as the proceeding would be if not conducted by videoconference;

• When feasible, a party and the party's attorney should be allowed to communicate privately off the record by use of a private communication facility (cellphone, landline, facsimile, Skype, etc.) during the proceeding, or during a break. The court is not required to provide a private communication facility if none is available.

There are also some exceptions; here they are:

• Situations where its use might create undue prejudice;

• When a person is available, but simply does not wish to be in the courtroom;

• Convenience vs the Value of the Testimony;

• Whether its use would interfere with the full ability to cross-examine a witness;

• In a circumstance where the gravity of being in the actual courtroom will impress upon the witness the importance of telling the truth;

• Whether a physical liberty or other fundamental interest is at stake in the proceeding;

• Whether the judge is comfortable with his or her ability to effectively control what is happening at the remote location;

• Whether a distortion in the technology causes those present in the courtroom to reflect negatively upon the person at the remote location;

• Whether use of the videoconferencing technology will diminish the integrity and fairness of a proceeding in a particular instance;

• Whether the person proposed to appear by videoconferencing presents a significant security risk to transport and present personally in the courtroom;

• The necessity of waivers and stipulations between the parties regarding the use of videoconferencing during a proceeding;

• And anything else that the judge might think is relevant.    

The party that wishes to use videoconferencing technology for the purpose of witness testimony must submit a motion stating their intent at least thirty (30) days prior to the proceeding.  Any party that objects to this must submit their objection in writing within ten (10) days of the filing of the original notice.  

So, what are the advantages of using this new technology in the courtroom?  The cost benefit is particularly relevant to those needing an interpreter or court reporter where none is available to be physically present, and the time, effort, and finances that would be required to get someone to be physically present would be restrictive.  This is particularly true of poorly served and rural areas that lack the same resources as larger metropolitan areas.  

However, there is no rule stating that courts must employ this new technology, and since the initial cost to install the equipment and training would presumably be substantial, it is likely that the areas that are poorly served now, will not be able to afford the equipment that is necessary to meet the requirements set out in the statute.  Furthermore, the statute does not specify who is supposed to pay for the installation and maintenance of the equipment.  Is it the County Treasury?  Is it the State?  Is it the Court Fund?

So, when would the videoconferencing technology be most valuable? Obviously, when used for expert witness testimony.  The ability to bring in the testimony of a nationally, or even internationally, renowned expert without having to pay travel costs would be an enormous cost savings for either side of a litigation.  As mentioned above, the ability to bring in an interpreter for unique and specific languages and dialects, would also provide witnesses and defendants the ability to understand and be understood.  This is not just important, but a Constitutional right.

What about the risks?  Clearly, it is difficult to tell when someone is lying.  Most people find it difficult to tell when they are face to face with someone.  Seeing and hearing them over a video screen will only make that more difficult. Considering that a big part of a jury’s job is to determine the credibility and reliability of each witness, this knew technology leap could get in the way of justice.  The level of personal separation videoconferencing technology provides has the potential to reduce the impact and gravity of the proceedings, creating an insulation or barrier to the stress and impact of a tough and vigorous cross-examination, harming the truth-finding process of witness confrontation.  Furthermore, there are no security measures in place that would ensure that the remote location remains pristine and free from influence or bias that could taint witness testimony.  It is feasible that a person could stand out of view of the camera and coaches a witness without the court’s knowledge.

Technology has invaded every part of our lives.  It has increased the quantity of communication, but not necessarily the quality.  There are efficiencies that would be created for the court system, but for each benefit there comes a possible risk.  So, what stands in the way of this technology leap?  The greatest barrier to this technological leap may be the fact that it requires financial and procedural investment, and the legal world tends to resist investment and resists procedural change even more.

Author: Lauren N. Stanley

DUI and Medical Marijuana in Oklahoma

Can I get a DUI even if I have a Medical Marijuana Card? 

In Oklahoma, the short answer is yes.  According to current Oklahoma Statutes, the ability to legally use a controlled substance for medical purposes does not mean that it is legal to operate a motor vehicle while under its influence (47 O.S. 11-902 (B)). This applies to any substance that might cause impairment, whether it is a prescription or not.  If a substance impairs cognitive function and normal reflexes it is neither safe nor legal to drive.  The legality of the substance is irrelevant.

  There are many prescriptions that have side effects that include drowsiness or impaired reflexes and it will say so on the bottle when you receive it.  “CAUTION!!! This medication may cause drowsiness!  Do not drive or operate heavy machinery until you know how it affects you!”  This applies to everything from heavy duty prescription narcotics to over-the-counter Benadryl.  

According to the law, Marijuana is no exception. This exemplifies a situation in which older statutes have not been updated to reflect new laws.  Marijuana is still listed as a Schedule I substance, even though Schedule I substances are considered to be those substances that lack a medical purpose (63 O.S. 2-203 & 63 O.S. 2-204 (C)(12)). The DUI Statute states that having anyamount of a Schedule I drug in your system is a violation (47 O.S. 11-902 (A)(3)). As such, testing positive is sufficient cause for prosecution, and the State does not have to prove that you were impaired, merely that it was in your system.  

This is problematic for those who use legal medical Marijuana due to the fact that it lingers in your body long after its mind-altering effects have worn off.  It can take up to thirty (30) days for your body to completely metabolize it. 

This is a burgeoning issue in law and the administrative and legislative branches of the government are still trying to manage the legalization of Marijuana for medical purposes.  As an individual, be sure to be responsible and take precautions to ensure your protection from a system that is still working out some of the kinks.

If you get stopped, politely decline from making any statements without your attorney present. Do not consent to taking the field sobriety test. Do not consent to a search of your vehicle. If you get arrested for a DUI call an experienced, aggressive, and compassionate team of attorneys that can handle the criminal and DPS issues for you. Why hire an attorney when you can hire a team?

Call Boeheim Freeman Law at 918-884-7791 for your free consultation.

Written by Lauren Stanley