Ask the Fairfax-Arlington Criminal Attorneys: Can Police Use a Preliminary Breath Test in a Reckless Driving Prosecution?

Criminal lawyers in Arlington are abuzz over a new Reckless Driving defense stemming from a case appealed from the Arlington County Circuit Court. It is a common fact pattern: a police officer investigates a car accident in which a driver was driving erratically. He performs a drunk driving (“DUI”) investigation, but abandons it when the Preliminary Breath Test (“PBT”) turns out to be low. Can the police use this low PBT in order to help prove a DUI? Is Reckless Driving a “fall back” charge for police when a DUI cannot be proven?

The Court of Appeals of Virginia hinted in a recent unpublished decision that the answer is “no.” The case was Burnside v. Commonwealth, 0660-12-1 (May 14, 2013).

In Burnside, a woman was observed driving over the speed limit and, when changing lanes, struck another car causing a bad multi-car collision in I-395 near the Pentagon. The police investigated and, since Ms. Burnside smelled of alcohol, conducted a field sobriety test – the PBT. In Virginia PBTs are used to help an officer decide whether to arrest a motorist for DUI. In this case, Ms. Burnside’s breath tested a low 0.04. (The “legal limit” is 0.08, although one who is “intoxicated” at a lower level can still be convicted. However, under the DUI laws, one with a level below 0.05 is presumed to be sober). As a result of the low test result, the officer charged her with Reckless Driving and not DUI.

At the Reckless Driving trial, the prosecutor presented the evidence of the PBT.  Ms. Burns’ criminal lawyers in Arlington objected on three grounds (1) the PBT was not reliable and couldn’t be used in a Reckless Driving prosecution, (2) any PBT result must be offered with some proof that a PBT result means that one is impaired, and (3) if the PBT result is to be admitted, the jury should be told that one with a level below 0.05 is presumed sober.

On appeal, the criminal lawyers in Arlington did a fine job.  One of the issues they raised was one that all Virginia lawyers want to have resolved – could the prosecutor have used the PBT at all in the Reckless Driving prosecution?  Unfortunately, the Court did not agree to consider that argument.  (Appellate courts in Virginia get to pick and choose which legal arguments they want to hear).

The Court’s official holding was that the Arlington Circuit Court was wrong by admitting the testimony of the PBT when no evidence was presented concerning whether such a result signified that the driver was intoxicated and driving recklessly. It further held that, in the event the prosecution adduces evidence of a particular blood alcohol level to establish that appellant was intoxicated and driving recklessly, the presumption of sobriety becomes relevant. It remanded the case for a new trial in Arlington.

However, in a footnote, the Court of Appeals wrote:

“The Commonwealth notes that “[a]lthough the admission of [preliminary breath test
results] is prohibited by statute in the prosecution of certain offenses, see Code § 18.2-267(E), there is no impediment to using the test results in other prosecutions not enumerated in the statute, such as reckless driving.” Commonwealth’s Br. at 7. Appellant does not provide us with any countervailing statutory arguments concerning whether a preliminary breath test may properly be admitted in a prosecution for reckless driving. Code § 18.2-267(E) further states that “the purpose of this section [is] to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.” This sentence suggests a legislative intent to limit the use of preliminary breath tests to the purpose stated, namely, equipping law enforcement officers with a tool to determine whether someone is driving while intoxicated, rather than to develop evidence for use at trial. In the absence of any substantive briefing on the question of whether a preliminary breath test may be admitted at all in a reckless driving prosecution, however, and in the face of a statute that does not speak directly to the issue, we decline to raise sua sponte the question of whether, by statute, preliminary breath tests may be admitted at all in a prosecution for reckless driving.”

It appears that the Court of Appeals would have held that a PBT could not be used in Reckless Driving trial. Ms. Burns’ lawyers may win the retrial of the case.  If not, hopefully, she will appeal again and the Court of Appeal will permit a hearing on this important argument. All criminal lawyers in Arlington want to know the answer.