Using Preliminary Breath Test Results in Trials? Don’t Hold Your Breath!!!

This article by Rex Anderegg which appeared in Wisconsin Lawyer (the publication arm of the Wisconsin State Bar) explores circumstances in which preliminary breath test (PBT) results could potentially be used in OWI trials in the future. The author acknowledges that as of now, PBT results have been mostly kept out of OWI trials, but also suggests that the natural development of technology will probably lead to more questions about the admissibility of PBT results in the future. The article also examines two rare cases in which PBT results were deemed to be admissible in court. The first case involved a habeas corpus claim by the defense, arguing that the PBT results were necessary to plot the curve of the defendant’s BAC and show that he was under the legal limit at the time of arrest. After denial in state court, a federal district court judge granted the habeas motion and permitted the evidence to be introduced, reasoning that the Sixth Amendment protections for the defendant outweighed the interest of the state in enforcing drunk driving laws. The second case involved a PBT administered by hospital personnel, not by law enforcement. The PBT evidence was admitted in this case and the Wisconsin Supreme Court affirmed the defendant’s conviction, albeit in four opinions. However, these opinions did lay out a framework by the court in dealing with these cases which might be useful in future cases about the admissibility of PBTs. The article ends with a list of questions which will all likely surface during future trials in which the admissibility of PBT results is at issue.

The 4th Amendment, Riley, and Texting While Driving

Mark Herring, the Attorney General of Virginia, recently wrote an advisory opinion on the Supreme Court of the United States’ decision in California v. Riley from June of 2014. Delegate David Bulova of the Virginia House of Delegates asked the Attorney General if the Riley decision would affect the ability of police officers to search, without a warrant, the phones of motorists suspected of texting and driving. Attorney General Herring discussed the Riley opinion and pointed out that since that case dealt with searches incident to arrest, the right to privacy of ordinary motorists who have not yet been arrested is even greater. He then went on to point out that the Supreme Court discussed this very possibility in the Riley opinion, distinguishing it from the ability of police officers to search an area of the car for which they have reasonable suspicion they might find evidence of the crime at issue (discussed in Arizona v. Gant). As a result, Attorney General Herring concluded that the Fourth Amendment, as interpreted in Riley, prohibits the warrantless search of cell phones of drivers suspected of texting while driving. He noted at the end of his advisory opinion, however, that officers may still ask for consent to search the phone, seize it and then get a warrant to search the phone, or search it under exigent circumstances (noting that this requires a “true emergency”).

Guidelines for Creating Judicial Outreach Liaisons

The criminal justice system plays a critical role in deterring unsafe driving behaviors and assigning appropriate consequences for impaired driving and other traffic offenses. To that end, peer-to-peer training, education and outreach have been found to be most effective in promoting proven and promising practices. NHTSA has developed a network of criminal justice professionals who serve as direct resources to State and local judges and have access to or knowledge of national resources that benefit them. A limited number of hardcopies are available by contacting, or those interested can simply find the guidelines at the following link.

Grants Available for DWI Courts

The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Substance Abuse Treatment (CSAT) is accepting applications for fiscal year (FY) 2015 Grants to Expand Substance Abuse Treatment Capacity in Adult and Family Treatment Drug Courts. Eligible adult drug court models include Tribal Healing to Wellness Courts, Driving While Intoxicated (DWI)/Driving Under the Influence (DUI) Courts, Co-Occurring Drug and Mental Health Treatment Courts, Veterans Treatment Courts, and Municipal Drug Courts that adhere to the drug court 10 key components. Applications are due by March 27, 2015.

Upcoming Course: Mar. 23-26 in Reno, NV. "Behind the Wheel: Today's Traffic Offender"

The arena of traffic-related offenses is constantly evolving. Driving while under the influence of drugs as well as alcohol will be an issue that will appear with more frequency in traffic courts around the country. This course will offer insight into case issues and effective strategies from the perspective of the prosecutor, the defense attorney, the treatment provider, and the judge. The course will also offer several sessions regarding the state court tie-in to administrative law issues such as license revocation and driving with a suspended license, and will also provide solutions to modern day traffic court issues such as distracted driving and commercial motor vehicle issues. In addition, during the course we will visit a drug court session at the District Court in Reno in order to become familiar with the drug court model. Finally, the course will provide an in-depth analysis on evidence-based sentencing options which judges can effectively use when managing traffic offenders. Potential attendees are advised that there are a limited number of scholarships available for tuition and up to $750 in travel costs based on approval.

Call for Article Submissions!!!

Trends in State Courts is an annual, peer-reviewed publication that highlights innovative practices in critical areas that are of interest to courts, and often serves as a guide for developing new initiatives and programs, and informing and supporting policy decisions. Trends is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically. Submission for the monthly online version of Trends are welcomed. Please email abstracts of no more than 500 words to Deborah Smith at for consideration. Visit the Trends in State Courts website at 

NCSC Traffic Resource Center

The Traffic Resource Center is a cooperative effort between the Department of Transportation and the National Center for State Courts (NCSC) to establish a resource for judges, court administrators, court clerks, and other court staff on issues related to traffic adjudication. It is an integrated clearinghouse of information as well as a training and technical assistance resource to improve court decision-making and processing of traffic cases involving impaired driving, drugged driving, distracted driving, and commercial driving. The purpose of the Traffic Resource Center website is to provide a useful, ready reference for judges new to the bench or recently assigned to traffic cases, who may need quick access to accurate and timely information until they can receive more formal, structured education.

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