When I worked in the District Attorney's Office in Chester County, I prosecuted several underage drinking cases and they would usually go down as follows. A cop would bust a party at a frat house or apartment. Let's say it happened in West Chester. They would always line the kids up and make them stand against a wall. The cops would then id the kids and if they were under 21 they would administer what is called a portable breath test or "PBT" for short. This test is similar to a breathalyzer used in a DUI prosecution. The test requires the subject to blow into a mouth piece. Once the subject blows, it will immediately give the officer a digital blood alcohol concentration (BAC) reading. This test works similar to a breathalyzer but it is not nearly as accurate. The test is convenient for police because it is easy to administer and it saves the officers time. Unlike a breathalyzer or blood test in a DUI prosecution, there was no necessity to bring the underage drinker back to the station to administrate the test. All of the students at the party could be tested and cited on spot.
When I was a prosecutor it was easy for police to obtain underage drinking convictions in court. All the police had to prove was that you were under 21 and that the PBT showed a positive reading. Last October of 2010, the Pennsylvania Supreme Court Case of Commonwealth v. Brigidi came out and changed everything. In this case, the Pennsylvania Supreme Court states that PBT's are NOT admissible in a judicial proceeding for evidentiary purposes. This means that PBT's should not be admitted into evidence in an underage drinking case.
What does this mean for those of you facing underage drinking charges? It means, if the police cited you, plead NOT guilty right away and call my office. These cases can be beat. The police will have to prove you guilty beyond a reasonable doubt without the aid of a PBT. The way I see it, if the police want to convict someone of underage drinking, they are going to have to treat it like a DUI case. They will have to start administering field sobriety tests or have you submit to a calibrated breathalyzer used in a DUI prosecution or take you to the hospital and have blood drawn.
Also, many attorneys and police are misreading the Brigidi decision to stand for the proposition that PBT's must be approved by the Pennsylvania Bulletin and calibrated prior to admission in an underage drinking case. I do not read the case this way; this is not what the Pennsylvania Supreme Court says. PBT's are not admissible in judicial procedings until the technology and reliability in PBT testing is advanced by science and supported by the legislature. PBT's are only admissible for the limited purpose of pre-arrest breath testing or field screening for probable cause determinations. In short, this means the police can only use PBT's to determine if they should arrest you. The reading is not admissible in court to convict you.
If you or your son or daughter has been accused of underage drinking in Pennsylvania plead NOT guilty to the citation and contact Jason R. Antoine, Pennsylvania Underage Drinking Attorney.
