Challenging Basis for PBT in DWI Case, MN Supreme Court Grants Review
Recently, the Minnesota Supreme Court granted review in a case challenging the basis for a law enforcement officer to administer a preliminary breath test (PBT). Ordinarily, in DWI cases, reasonable articulable suspicion is required for an officer to request a PBT during a DWI investigation. In Lorsung v. Commissioner of Public Safety, the officer stated the driver passed the one field sobriety test administered and did not suspect her of being impaired. But, the officer wanted the driver to do the PBT anyway just to make sure people cannot say he “didn’t do my job”.
The Minnesota Supreme Court decided to grant review to address the legal issue of whether it was error for the court of appeals to rewrite the the reasonable, articulable suspicion standard by disregarding evidence obtained before a satisfactory [horizontal gaze nystagmus test] and prohibit gathering additional evidence. The Attorney General’s Office will argue that the evidence of the driver bumping into a pedestrian with their car and drinking at the bar before closing time should be included in the decision to ask the driver to take the PBT. The district court included all that evidence in its determination of whether reasonable, articulable suspicion existed to ask the driver to submit to the PBT. Importantly, it is the result of the PBT that lead to probable cause for the DWI arrest in this matter. Without the PBT result above the legal limit, the driver assuredly would have been allowed to leave.
From a practical perspective, many may ask why does it matter – the officer asked the driver to blow into the PBT and the result was above the legal limit and a drunk driver was prevented from driving on the road. The answer lies in the basic fundamental protections of our constitution. The Fourth Amendment protects against unreasonable searches and seizures. Once an officer determines that no criminal activity is present, they did not want to keep the person around, and asked if they had any questions before they left, the person should be free to go. Instead here, the officer wanted to do one more thing after determining the driver was free to leave. Expanding the scope of a traffic stop is where this matter – and any others – run afoul of the Fourth Amendment.
It will be interesting to see the Minnesota Supreme Court’s decision in this case. DWI-related cases are increasingly drawing scrutiny as accidents, injuries, and fatalities garner media attention. While outside influences should never impact a judicial officer’s decision making, we all know it is a factor of the human experience. A decision to uphold the officer’s decision to request the PBT will likely signal an “end-justifies-the-means decision.”
Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota and Wisconsin. Super Lawyers named him a Super Lawyer for the past four years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Woodbury, Criminal Defense Attorney Minnesota, OWI Lawyer Wisconsin.