The State of Oklahoma v. Julio HUmberto Cardena-Moreno

Guymon, Oklahoma DUI lawyer represented the Defendant.

Julio Humberto Cardenas-Moreno, Appellee, was charged with Driving a Motor Vehicle While Under the Influence of Alcohol in the District Court of Texas County, Case No. CM-2019-94. After a hearing on October 28, 2019, the Honorable A. Clark Jett granted Appellee's Motion to Suppress. The State appealed this decision under 22 O.S.2011, § 1053(5).

The District Court suppressed the state's evidence.

The State Appealed.

¶4 Oklahoma prohibits a person from driving a vehicle while under the influence of alcohol. 47 O.S.Supp.2018, § 11-902(A)(2). Admissible evidence of impairment (but not of a specific alcohol concentration level) includes testimony regarding the results of standard field sobriety tests, given by a trained and experienced witness. 47 O.S.Supp.2018, § 11-902(N). The question here is whether a preliminary breath test (PBT) should be treated as a field sobriety test, or is more like a test for specific blood alcohol concentration, such as a breath test given under 47 O.S.Supp.2019, § 752.

¶5 Appellee's claim that a PBT is a form of breathalyzer test is unconvincing. Sampling and testing under 47 O.S.Supp.2015, 2019, §§ 752 and 759 are performed to obtain specific alcohol concentration levels, which are intended to be admitted in court proceedings to prove that a defendant has a specific alcohol level greater than that allowed by statute. The record shows that the PBT here did not produce a numerical value for a specific alcohol concentration. Neither the arresting officer nor the prosecutor claim the result of the PBT showed any specific alcohol level, nor was there evidence the test was used to get such results.

¶6 Appellee argues that the Legislature did not include PBTs in a list of standard field sobriety tests. In fact, the Legislature did not provide a list of standard field sobriety tests in 47 O.S.Supp.2018, § 11-902(N). Instead, the statute refers to standard tests "including, but not limited to" horizontal gaze nystagmus tests. Nothing in this language suggests that the Legislature intended to exclude PBTs from this category. Appellee claims there are three standard tests. He cites no Oklahoma law or regulations for that claim, and no evidence supports it. Appellee admits that PBT devices are not included in the list of approved devices for measurement of specific alcohol concentrations. He claims that PBT instruments are intended to be regulated, and there was no evidence that this PBT instrument had been approved by the State. Any merit this argument might have would go to the weight to be given the test results, not their admissibility. State v. Hovet, 2016 OK CR 26, ¶ 9, 387 P.3d 951, 954-55.

¶9 The trial court below ruled simply that "The PBT test is not admissible in Oklahoma." No law supports that statement, and the finding is an abuse of discretion. Reviewing the law de novo, we find that PBT tests, when used as a field sobriety test to estimate a suspect's level of impairment, and without including a specific number purporting to equal an alcohol concentration level, may be admissible to support an allegation that a person accused of driving under the influence was impaired. 47 O.S.Supp.2018, § 11-902(N). Like any other evidence, their admissibility in any given case must be determined by the trial court on a case-by-case basis, using the relevant standards for measuring reliability. The proposition is granted, and the case reversed and remanded for further proceedings.

Reversed