Breath Tests

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Preliminary Breath Test (PBT)

Law enforcement will often employ the assistance of a breathalyzer in the field to help them decide whether someone is under the influence of alcohol. These portable field breathalyzers are used to conduct what is called a Preliminary Breath Test (PBT).

These tests, although helpful for developing probable cause, are not as reliable as the officially sanctioned chemical tests that are employed after an officer charges someone with impaired driving.

PBTs may be used to help develop probable cause, but the law prohibits the jury from hearing the results of the PBT or learning that a defendant refused to take one. § 42-4-1301(6)(i)(II), (III). The tests may, however, be used to establish probable cause at a motions hearing. See id. (“except in a hearing outside of the presence of a jury”).

Breath Testing

After an officer arrests a driver for driving under the influence of alcohol, if the suspect chose a breath test, the officer will transport the driver to a local police station that has a breath testing machine.

The official breath test machine used in Colorado is called the Intoxilyzer. The most current model is the Intoxilyzer 9000 (“I-9000”). It tests for the presence of alcohol. It cannot test for the presence of drugs. Colorado’s I-9000 full technical manual can be found at https://cdphe.colorado.gov/laboratory-services/evidential-breath-alcohol-testing-ebat/intoxilyzer-resources-for-evidential.

Law enforcement must follow certain procedures established by the Department of Department of Public Health and Environment (CDPHE) to ensure the test is accurate. This includes a 20-minute deprivation period where the officer must observe the driver the entire time to ensure the driver does not burp or belch or drink any more alcohol. If a driver burps or belches during the test itself, the machine may not return an accurate result. Therefore, if a person does burp or belch during this period, the period resets and the officer must wait another 20 minutes before administering the test. For more information about CDPHE and its rules and procedures, visit CDHPE’s website https://cdphe.colorado.gov/laboratory-services/evidential-breath-alcohol-testing-ebat

Once the test is complete, the I-9000 will print:

      • a summary of the results,
      • the machine’s error-check log,
      • the machine’s maintenance log, and
      • the machine’s CDPHE certification.

Results Printout

I 9000 EBAT Test Report

Certification

I 9000 Certification

Performance Report

I 9000 IPR

Maintenance Log

I 9000 IPR Monthly Maintenance Record

I 9000 IPR Monthly Maintenance Record Page 2

A law enforcement officer must be trained and certified to use the I-9000. Officers must also complete a yearly refresher course. For more information about the training and certification requirements, see the CDPHE Page on EBAT Training for Law Enforcement.

In accordance with Rule 16, obtain and discover the I-9000’s four printouts and the officer’s certification to use the machine. The breath test results may be excluded if you do not timely discover these documents.

Admissibility of Intoxilyzer Tests

Constitutionally, breath tests are admissible in the absence of a warrant once an officer arrests a suspect for impaired driving. Birchfield v. North Dakota, 579 U.S. 438, 474 (2016) (“Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.”). Statutorily, a breath test is usually admissible even if the operator did not strictly follow the procedures established by CDPHE.

Strict compliance with the rules and regulations prescribed by the department of public health and environment shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results.

§ 42-4-1301(6)(f). See also Thomas v. People, 895 P.2d 1040, 1045–46 (Colo. 1995) (“Once a prima facie showing is made that the testing device was in proper working order and was properly operated by a qualified person, and that the test was administered in substantial compliance with department of health regulations, the test results are admissible.”)

If the officer administering the test did not follow the proper procedures, consider consulting CDPHE prior to trial to ensure the test was still reliable and accurate. You may need to call this expert to testify at trial.

Resources

Colorado Videos

What Prosecutors Need to Know About the Intoxylzer 9000

Admitting Test Results from the I-9000

National Resources

Breath Testing for Prosecutors

CDPHE Contact Information
cdphe_ebat@state.co.us
(303) 692-3295