This past week, the 4th District Court of Appeals in Ohio published a decision which addressed the admissibility of the PBT (portable breath test - aka, the hand-held breath test).  The defendant in State v. Shuler, 2006-Ohio-4336, wanted to admit the PBT result that showed he was under the illegal limit (it showed .078) and the trial judge said NO!  Defendant entered a no contest plea then appealed the issue.  The 4th District held that they have always allowed the test result to be admitted for purposes of "probable cause to arrest" but they could never consent to it being admitted at trial because it is "inherently unreliable."  That's right, 3 court of appeals judges unanimously agreed that a device they called INHERENTLY UNRELIABLE can be considered for probable cause to arrest!!!  Specifically, they said "PBT results are considered inherently unreliable because they ''may register an inaccurate percentage of alcohol in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all.''"   

Is anyone out there as amazed as I?  I find it absolutely amazing that a court can allow ANY evidence to be admitted if it is INHERENTLY UNRELIABLE, no matter what type of hearing it's for.  Is this decision telling us there is a different standard for the State than for Defendants? 

 

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