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Portable Breath Tests for Underage Drinking See New Defense

Portable Breath Test Devices ("PBT's") must be properly calibrated and tested for them to be admissible as evidence

Concerts, parks, recreational activities, fireworks, boating and hiking brings folks outdoors in masses. Those masses also contain those who imbibe. Some of the folks are not always 21 or over. We see an unusually large increase in crimes associated with Underage Drinking and Consumption or Transportation of Alcoholic Beverages during the Summer.

In order to show that someone under the age of 21 has used an alcoholic beverage, the police must provide evidence that:

(a) there was an actual observation of the defendant either drinking or in possession of alcohol; or

(b) there was evidence that the defendant exhibited any degree of intoxication; or

(c) there was evidence to establish the alcoholic content of any beverage that the defendant might have consumed; and

(d) there was not a reasonable possibility that the consumption of nonalcoholic or very low alcohol malt or brewed beverage accounted for the odor on the defendant's breath.

In Commonwealth v. Brigidi, the Superior Court held that the admission of evidence derived from portable breath test (PBT) device constituted prejudicial error where the device was not calibrated and tested for accuracy within the period of time and manner provided by statute. In other words, the machine the cop was using was not properly calibrated and tested and therefore the result couldn't be used to prove guilt.

If you or someone you know has been charged with underage drinking, consumption, or possession of an alcoholic beverage, don't trust the results of the PBT to guide you in your determination of whether to plead guilty or not. Talk to the attorneys at Shaffer & Engle Law Offices, LLC before you go to a hearing.