Officers utilize preliminary breath tests (PBTs) to determine DUI or DWI suspects’ probable blood alcohol content. PBTs are handheld breath test devices. Under Virginia Code 18.2-267, a DUI suspect is entitled, if a PBT is available, to have such a test administered, but “[w]henever the breath sample analysis indicates that alcohol is present in the person’s blood, the officer may charge the person” with DUI. See Va. Code 18.2-267(A) & (D). Officers must inform persons that they may refuse a PBT without penalty and the test cannot be used in a prosecution against them. See Va. Code 18.2-267(C)(D) & (F).
While the law states the PBT is voluntary and cannot be used in a prosecution, in our view, this statement of law is misleading to a lay person because the test can be used against a person in court in certain important circumstances. As construed by Virginia’s appellate courts, PBTs can used in court against a Defendant moving pretrial to suppress their arrest for lack of probable cause, even if the PBT cannot be used in the trial itself. See e.g. Stacy v. Commonwealth, 22 Va.App. 417 (Va. App., 1996). This can lead to convictions because often a DUI arrest is validated by a PBT (i.e. probable cause is found), which leads to an admissible breath or blood alcohol test reflecting the defendant was above the legal limit. In such a circumstance, the PBT was undoubtedly used to obtain the conviction and therefore used in the prosecution of the defendant.
The Court of Appeals, however, did not address the Fourth Amendment and Due Process violations that arise when law enforcement clearly advises a defendant that a search cannot be used against her, executes that search based on “consent,” and then attempts to use that search against the defendant in a subsequent probable cause hearing. That is, the holding in Stacy is inapposite and irrelevant to the Defendant’s assertion that it would violate her rights under the Fourth Amendment and Due Process Clause to explain to her that a search (the preliminary breath test) could not be used against her, execute that search, and then subsequently use it against her in a probable cause hearing.
Fourth Amendment Violation
The U. S. Supreme Court has recognized that a breath alcohol test is a “search” within the Fourth Amendment. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616-617 (1989)(stating “[s]ubjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis  implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search.”). Being that the defendant, upon administration of the PBT, is generally not in custody, a PBT is a search based on consent. Therefore, if the defendant’s “consent” to take the test was not free and voluntary, the test must be suppressed because the officer violated the Fourth Amendment’s warrant requirement and no exception other than consent applies. The prosecution has the burden of showing free and voluntary consent by the preponderance of the evidence. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)(“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given”).
Hence, if the defendant was told that the test could not be used against her, the defendant would logically construe this statement as meaning that it could not be used in anyway against her. This cannot be free and voluntary consent and the PBT result should be suppressed. Bumper v. North Carolina, 391 U.S. at 548-49; United States v. Tweel, 550 F.2d 297 (5th Cir. 1977)(“It is a well established rule that a consent search is unreasonable under the Fourth Amendment if the consent was induced by deceit, trickery or misrepresentation of the Internal Revenue agent.”). Further, the Government cannot show, if it were to attempt to use the PBT against a person after obtaining consent by promising not to use it against her, that it has “sustain[ed] [its] burden of showing that it acted within the scope of defendant’s consent.” United States v. Dichiarinte, 445 F.2d 126 (7th Cir., 1971))(stating “[a] consent search is reasonable only if kept within the bounds of the actual consent.”)(internal citation omitted)..
Due Process Violation
The statutory PBT advisement also appears to violate due process because it incorrectly informs DUI suspects that the test cannot be used against them—which is not true—it can be used in perhaps the most critical context of a DUI case, a probable cause hearing. While there does not appear to be Virginia cases on point, other states have considered the effects of misadvise with regard to evidentiary tests.
In McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (1991), the Supreme Court of Minnesota held that it violated due process to mislead a driver as to the consequences of refusal. In doing so, the court invalidated appellant Moser’s breath test and rescinded a license revocation. The court found that appellant was incorrectly led to believe refusing a chemical test, after she was arrested for DUI, would result in criminal charges, which was false—appellant’s refusal would have simply resulted in a civil violation and a 12 month loss of driver’s license. The Supreme Court of Minnesota indicated that it “ha[d]consistently noted its concern that law enforcement officials not mislead individuals with respect to their obligation to undergo blood alcohol content testing.” (slip op. at 5). It further stated that the United States Supreme Court has indicated “due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.” Id. (slip op. at 6)(citing Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959)). The court also recognized that misadvice made a difference: “[t]he certainty of a full year’s license revocation may be less onerous than providing the state conclusive evidence of one’s guilt.” Id.
Other courts have also found due process violations where the government has misled DUI suspects as to the consequences of refusing or taking a chemical test. See State v. Massengale, 745 N.W.2d 499 (Iowa S. Ct. 2008)(affirming lower court’s exclusion of breath test on due process grounds where appellee’s “decision to consent to the breath test was not reasoned and informed because the implied consent advisory was misleading with respect to the applicable revocation periods for his CDL.”); see also Olson v. State, 260 P.3d 1056 (Alaska S. Ct. 2011)(indicating incorrect information on implied consent form raised due process concerns where appellant was informed refusing was a misdemeanor rather than a felony; remanding matter to see whether appellant was prejudiced by misinformation); see generally, Flew Whited, III and Donald H. Nichols, “§ 7:3. Misstatement of implied consent obligations,” Drinking/Driving Litigation: Criminal and Civil (updated 2012).
Virginia courts should address the Constitutional problems occasioned by officers telling DUI suspects that PBTs cannot be used against them and in the interest of transparency, officers should simply tell DUI suspects that the tests can be used against them in court.
 It appears that the appellant in Stacy did not raise Fourth Amendment or Due Process challenges to the PBT.
 Breath tests administered to subjects under arrest are now considered searches incident to arrest. Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).