PBTs and the Fourth Amendment

Published for NC Criminal Law on December 05, 2011.

At the start of the fall semester, the Daily Tar Heel reported that Chapel Hill and Carrboro police officers have combined forces with UNC campus police in an effort to ramp up enforcement of laws prohibiting underage drinking.  The article states that undercover operations are among the tactics employed by the town’s Alcohol Law Enforcement Response Team to ferret out college-age miscreants. G.S. 18B-302, the statute that makes it unlawful to for a person less than 21 years old to consume alcoholic beverages, places another enforcement tool at officers’ disposal.  G.S. 18B-302(j) permits a law enforcement officer to “require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test using a device approved the Department of Health and Human Services.”  Approved devices, listed here, include several versions of the ALCO-SENSOR brand of breath testing devices. Regulations further prescribe the manner in which screening tests may be administered on such devices.  G.S. 18B-302(j) renders “admissible in any court or administrative proceeding” a person’s refusal to submit to testing on an approved alcohol screening test device. Of course, such alcohol screening test devices, commonly referred to as portable breath tests or PBTs, also are approved for and commonly employed in the investigation of implied consent offenses.  G.S. 20-16.3 permits a law enforcement officer to require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has (1) [...]