PAS (Preliminary Alcohol Screening) Tests in California DUI Cases

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What is the PAS test

Many DUI arrests involve PAS testPAS test is a “preliminary alcohol screening” test, accomplished through the usage of a portable DUI breathalyzer, dubbed a PAS device.  Portable breathalyzers, or PAS devices, are carried by many police officers on patrol and are used as a tool in a DUI investigation.  A DUI investigation usually begins after a traffic stop or a traffic collision.  When a police observe a traffic violation and conduct a traffic stop, or when a police stop is dispatched to a traffic collision, he will look for any objective signs of intoxication from the drivers involved.  If a police officer smells alcohol or observes a tired demeanor, an unsteady gait, extreme sleepiness or unusual reactions, he might suspect that you are drunk driving.  If so, he is likely to request you to submit to voluntary drunk driving tests.  Drunk driving tests are a series of tests that are done in the field and are therefore called field sobriety tests.

The field sobriety tests, or FST’s, can be several of various tests, culminating with a PAS test DUI check, used to determine the presence of alcohol in your blood.

Keep in mind that all field sobriety tests are voluntary and you do not have to submit to them.

Most of the time, the observation of a DUI police officer are very subjective and will result in an arrest, unless you can show the alcohol level in a PAS device that is below .08% BAC.  For example, if you blow .07% BAC and you are not on a DUI probation or a teenager drunk driving, many police officers will ignore the slight errors on the FTS’s, such as a walk-and-turn test, a one-legged-stand test and a finger-to-nose tests.

A PAS device DUI investigation tool supposed to be used only to determine the presence of alcohol.  Consequently, many police agencies have DUI suspects blow only one breath sample into a PAS breathalyzer machine.  For example, it is not uncommon to have Riverside County DUI investigation officers to get only one sample of breath and arrest a DUI driver based on that one sample.  However, one sample is inherently unreliable because a PAS dui results are reliable only when two samples fall within .02 of each other.  In other words, two samples of .07% BAC level and .09% BAC are reliable whereas a .07% BAC and .010% BAC are not.  This rule comes from the California Code of Regulations Title 17, section 1220.4.  If a single PAS test result is reported, there is no confirmation of that results by the second test and the first test result can not be relied on to show a specific alcohol level.  The law only allows that PAS test to be used to show the presence of alcohol.

A PAS device can be used to measure the alcohol presence but it can not be used to measure the level of alcohol.  To register a breath sample, a 1.5 litter of breath needs to go through the PAS device.  When a drunk driving driver does not provide a 1.5 litter of air, the PAS test can still get a sample of breath by a “manual trap” function.  A manual trap will not account for the mouth alcohol and can incorrectly show an alcohol level that is not reflective of the true alcohol level.  A DUI PAS test also is not equipped with a mechanism to eliminate the mouth alcohol.  That mechanism is referred to as a a slope detector.  If you are being prosecuted based on a pas DUI test alone, you can have your case dismissed with an aggressive Los Angeles DUI lawyer who knows the DUI law and science.

Preliminary Alcohol Screening Test (PAS) Refusal

If you are investigated for a DUI, a police officer might ask you to submit to a preliminary alcohol screening test (PAS test).  The preliminary alcohol screening test is not required to take.

Will Preliminary Alcohol Screening Test Refusal affect my license?

A refusal to submit to a PAS test should have not any consequences on driver’s license unless you are a minor or a person who is already on probation for drunk driving.  DUI attorney Los Angeles recommends that you do not submit to a PAS test unless you have consumed all of the alcohol shortly before being pulled over – to help establish a rising blood alcohol level defense.  Simply, if you consumed all of the alcohol minutes before being pulled over, the PAS test should show a low alcohol level.  The subsequent post arrest chemical alcohol test will show a higher blood alcohol level and will establish a rising blood alcohol defense.  A rising blood alcohol defense is one of the most successful defenses used by Los Angeles DUI attorneys in fighting DUI cases in court and the DMV.

Vehicle Code Section 13353.1 explains that minors and persons who are on probation for a DUI can not refuse to submit to a breath alcohol test.  A refusal to submit to preliminary alcohol screening test test will have terrible consequences for drivers who are minors. The consequences have to do with driver’s license only and are determined by the DMV and not by the court.  A refusal to submit to a chemical test can have consequences in the court system, however, here, we are focused on the administrative consequences for drivers – decided by driver’s safety offices within the DMV.

Minor are those drivers who are not allowed to consume alcohol and, for purposes of drinking and driving, considered anyone who is under the age of 21.  A minor who with a refusal to submit to a PAS test will have his or her license suspended for one year if there are not prior offenses or have the license revoked for 2 years if he has a one prior DUI related offense within the past ten years.  Further, a minor who refuses to submit to a PAS test and he has two prior DUI offense will have his license revoked for 3 years (CVC 13388).  If you are a minor who is charged with a DUI related offense you need help of an experienced DUI lawyer in Los Angeles.  A refusal to submit to a chemical test will carry especially hard consequences for a minor driver.

The law for a person on a DUI probation is almost identical and a refusal to submit to a chemical test will cause a license suspension for one year.  If a person who is on DUI probation have a prior DUI related offense, he will face a driver’s license revocation for a period of two years.  A two or more prior DUI related offenses for a person who is on DUI probation will cause a license revocation for three years.

A prior for and administrative finding by the DMV is any of the following: 01% Minor infraction DUI (CVC 23136); wet reckless; .05% Minor DUI (CVC 23140); DUI (CVC 23152); DUI with injuries (CVC 23153); Vehicular Manslaughter (California Penal Code 191.5 and 192.5(a)); Previous DMV finding of refusal to submit to a test (CVC13353); Previous DMV finding of driving with a BAC equal or higher then .08% (CVC 13353.2).

Can PAS Test Refusal Be Used Against Me In Los Angeles DUI Case?

Sometimes during a DUI investigation, the investigating officer will request the driver suspected of a DUI to submit to a chemical PAS Test to determine if a probable cause exists for arresting that driver. That chemical test is called PAS, a preliminary alcohol screening test. The devices that are used by officers for PAS test are such instruments as Alco-Sensors manufactured by Intoximeters Inc. If the driver blows above .08% blood alcohol concentration during the PAS test, the investigating officer will become the arresting officer and the driver will be arrested. In Los Angeles DUI prosecution, the officer often will arrest drivers even if the blood alcohol concentration is below .08%. After such arrest, you will need the help of a Los Angeles DUI attorney. After the arrest, the driver is taken to a police station where a more reliable chemical testing is conducted to verify results of a PAS test, or when none exists, provide chemical reading. If the driver refuses to submit to a chemical test, he can be charged with a special allegation for refusing to submit to a chemical test. Such special allegation carry additional mandatory two days of jail time and a 9 month alcohol education program.

As a Los Angeles DUI Lawyer, I often defend “refusal DUIs”; and will address strategy, methods and defenses of “refusal DUI” in later articles. Here, I am focused only on the limited issue of refusal to submit to PAS. While there is no legal requirement to submit to PAS test, overzealous prosecutor might try to show the trier of facts that failure to submit to a PAS test shows consciousness of guilt. In other words, he or she might argue, “why else did the driver refuse to submit to a PAS test if not because he had too much to drink”. That issue was addressed by a California Court of Appeals in 2010 in the case of People v. Jackson (189 Cal.App.4th 1461). In Jackson, once he was informed of the right to refuse to submit to a PAS test he did so. At trial, the prosecutor introduced refusal to submit to PAS as a consciousnesses of guilt and the defendant was convicted of a DUI. The court opined that because there is a statutory right to refuse to take the PAS test, introduction at trial of the refusal as a consciousness of guilt was an error. In Jackson it was deemed a harmless error due to overwhelming evidence against him, but it established a law that all courts are now required to follow and it should not be admissible in any trial. Additionally, it can not be used by the prosecutors as an argument during plea negotiation, which Los Angeles DWI lawyers will use for your benefit.

PAS (Preliminary Alcohol Screening) Test in LA DUI Cases

Usually, a preliminary alcohol screening test is not used to prove an alcohol level.  In most DUI cases, a DUI driver submits to a breath test or blood test in the station or hospital at the conclusion of Los Angeles DUI investigation.  This chemical test is called, an evidentiary test, because it is used as evidence of blood alcohol level.  In addition to this evidentiary test, and as a part of field sobriety test,  a DUI suspect is asked to submit to a preliminary alcohol screening test, that is called, a PAS test.

A preliminary alcohol screening test is done using a portable device, such as Alco-Sensor IV or similar devices.

A preliminary alcohol screening device can needs to capture about 1.5 L of air to produce a reading.  When a preliminary alcohol screening (PAS) device results are below .08% BAC or the results are consistent with a rising blood alcohol defense, Los Angeles drunk driving attorney will subpoena the officer administering the test and officer maintaining the device to  introduce the results of the preliminary alcohol screening test into evidence.  The law that explains how to introduce preliminary alcohol screening test comes from Court of Appeals case People v. Adams, a 1976 case which explains how to “lay foundation” for introduction of Preliminary alcohol screening test.  “Foundation” is just a fancy legal word for “requirement”.

The foundation for the introduction of the preliminary alcohol screening test consists of 3 things:

  1. Something to show that the machine used was in proper working order.  This is accomplished by requesting that a PAS coordinator, an officer with the agency that hold the devises, testify that he maintains in according to the state law and manufacturing specifications.
  2. Something to show that the test was properly administered.  This is accomplished by having the arresting officer testify that he complied with the law governing administration of the test, such as Title 17 of the California Code of Regulations.
  3. Something to show that the operator (aka, the DUI officer) was competent and qualified.  This is shown by having a police officer testify about his training.

When there is compliance with these three factors, Los Angeles DUI Attorney or a prosecutor can introduce the PAS devise and use it to prove the blood alcohol level at the time of preliminary alcohol screening.  Without that, the preliminary alcohol screening can not be used for actual value, but can use only to show presence of alcohol in blood.

If preliminary alcohol screening test results are below .08% alcohol in blood, its introduction will help the defense in showing that the driver was below .08%.

Conversely, the prosecution might want to introduce PAS results because they are above .08%, but, your Los Angeles DUI Lawyer may be able to limit introduction of the preliminary alcohol screening because of non compliance with Adams.

Los Angeles DUI attorney can help you win your case.  Los Angeles DUI lawyer can also represent you at a DMV hearing.  If you call our office (818) 921 7744 , you can talk to one of best Los Angeles DUI attorney for free.
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