The breath and sobriety tests

It is the evidentiary mechanics of Chapter VII of Act 22-2000: which tests you can be asked for on the road, who else can require them, what happens if you refuse, how the sample is handled and what rights you have over the result. It is separate from the limits guide, which says where the line is, and from the penalties guide, which says what crossing it costs.

Consent is deemed given by everyone travelling Puerto Rico’s public roads driving a vehicle, motor vehicle, heavy motor vehicle or all-terrain vehicle. The officer may require the initial tests where they have reasonable grounds to suspect the person has consumed alcohol or used controlled substances, or where an accident occurs and the person was driving one of the vehicles involved.

• Driving a vehicle, motor vehicle, heavy motor vehicle or all-terrain vehicle on Puerto Rico’s public roads: that is what the Act treats as consent given.Verified against the official source
• For an officer to require the initial tests: reasonable grounds to suspect alcohol consumption or use of controlled substances, or an accident in which the person was driving one of the vehicles involved (Article 7.09(e)).Verified against the official source

Information pending verification.

1. 1

   Step 1: Driving is already consenting

   Article 7.09 opens by saying that everyone travelling Puerto Rico’s public roads driving a vehicle, motor vehicle, heavy motor vehicle or all-terrain vehicle “shall have given their consent” to the Standard Field Sobriety Test as well as to chemical or physical analysis of their blood, breath or any bodily substance. The field test and the initial breath test are performed at the place of the stop by the law-enforcement officer; if safety circumstances prevent it there, at a nearby place or the nearest station.

2. 2

   Step 2: Refusing does not avoid the test: it becomes arrest and a court order

   This is the point most people come for. Article 7.09(a) says consent is given for any of the analyses and that the person shall submit to whichever the intervening officer determines. And it continues: “If the person stopped refuses, objects, resists or evades submitting to the procedure of the alcohol, drug or controlled substance tests, they shall be arrested in order to be taken to a medical facility so that personnel certified by the Health Department may proceed to extract the relevant samples, with a prior court order”. Once the samples are taken they are released; but if after the blood or breath they still show symptoms of being unfit to drive, they are held at the station until the intoxication passes.

3. 3

   Step 3: If you are unconscious, the Act deems consent not withdrawn

   Article 7.09(b) says any dead or unconscious person shall be deemed not to have withdrawn their consent, and the analyses shall be performed on them subject to that article’s provisions.

4. 4

   Step 4: Who else can require the test

   Besides the intervening officer, Article 7.09(d) allows three others to require the analyses: the police member in immediate charge of the post, district or police zone where the arrest was made; the prosecutor conducting the preliminary investigation; and any judge or magistrate of the Court of First Instance.

5. 5

   Step 5: When the initial tests can be asked of you

   Article 7.09(e) says any law-enforcement officer may require a person driving or operating a motor vehicle to submit to the Standard Field Sobriety Test and/or the breath test and/or any other established test, if the officer (1) has reasonable grounds to suspect the person has consumed alcohol or used controlled substances, or (2) if an accident occurs and the person was driving one of the vehicles involved. The second case requires no suspicion: the accident is enough.

6. 6

   Step 6: The second test, and the drug route

   Article 7.09(f) says that if the initial breath test or another analysis indicates a possible concentration of 0.08% or more — or 0.02% or more for drivers of trucks, school buses, heavy public service vehicles and heavy motor vehicles, or any concentration for people under eighteen — the officer may require a subsequent analysis, and the results of both may be used. And it opens another route: if the field test and the breath test show the driver was not under the effects of alcohol and they still show signs of intoxication, the officer may have reasonable grounds to believe they are under the effects of drugs or controlled substances and shall submit them to a chemical blood analysis. And it adds the exit: if that analysis shows the person was not under the effects of drugs or controlled substances, “they shall be released immediately”.

7. 7

   Step 7: Your sample is split in three, and one is yours

   Article 7.09(i) is the most overlooked and most useful part. Every sample obtained from a person, except breath, shall be divided into three parts: one is handed to the detained person “so they can arrange their analyses”, and the other two are reserved for the Health Department and the Institute of Forensic Sciences — one for the analysis the article requires, and the other kept to be analysed only on the court’s instructions if there is a discrepancy between the official analysis and one privately arranged by the accused. In addition, Article 7.09(j) says only personnel duly certified by the Health Department, at the request of an officer, a prosecutor or a judge of the Court of First Instance, may request the extraction of a blood sample.

8. 8

   Step 8: You have a right to the result, and the lab result comes in prima facie

   Article 7.09(k) says a copy of the analysis result shall be sent to the prosecutor of the district where the events occurred to be added to the file, and that “the driver shall have the right to be supplied, or to have their lawyer supplied, with complete information on the analysis or analyses performed”. Article 7.09(l) adds the other side of the scale: any document in which the Health Department or the Institute of Forensic Sciences reports a laboratory result, signed by authorised officials, with their professional seal where required and under the agency’s official seal, shall be admitted in evidence as prima facie authenticated proof.

All of this happens on the road and afterwards at the station, the medical facility and the Court of First Instance. The initial tests are run by the law-enforcement officer at the place of the stop; the blood draw is done by Health Department certified personnel; the analysis is run by the Health Department and the Institute of Forensic Sciences; and the court order to extract samples after a refusal is issued by the court.

• Believing refusing to blow avoids the test: the Act turns refusal into arrest and a blood draw with a prior court order.
• Thinking consent has to be signed: the Act deems it given by the act of driving on public roads.
• Assuming it only applies to cars: the Act names the vehicle, the motor vehicle, the heavy motor vehicle and the ATV.
• Believing suspicion is needed to ask for the test after an accident: subsection (e)(2) only requires that there was an accident and that you were driving one of the vehicles.
• Thinking only the officer who stopped you can require it: so can the head of the post or zone, the prosecutor in the preliminary investigation and any judge or magistrate.
• Assuming the breath test is split in three: the Act expressly excludes breath from that rule.
• Not claiming your part of the sample: of every non-breath sample a third is yours to arrange your own analysis.
• Believing a private analysis is useless: the third portion is kept precisely to be analysed on the court’s instructions if there is a discrepancy.
• Not asking for the result: the driver has a right to complete information on the analyses, for themselves or their lawyer.
• Thinking a clean breath test means you leave: if signs of intoxication remain, the officer may submit you to a chemical blood analysis for drugs.
• Ignoring the exit in subsection (f): if that blood analysis shows you were not under the effects of drugs, you are released immediately.
• Letting anyone draw your blood: only personnel certified by the Health Department may.

These are the government pages this guide is based on.

• Departamento de Transportación y Obras Públicas (DTOP)

  DTOP

  bvirtualogp.pr.gov