Can a PAS Test Be Used Against You? Understanding Breath Tests in DUI Cases and DMV Hearings
As a Criminal Defense DUI Attorney in Los Angeles, I often get questions about the breath test police ask you to take during a DUI stop—before any arrest is made. This initial test, known as the Preliminary Alcohol Screening (PAS) test, is a key part of the investigation, but it’s not the official chemical test required after arrest.
Understanding the distinction between these tests, and how the courts and DMV treat PAS results, can be crucial to defending your rights. Los Angeles DUI Attorney and Los Angeles Criminal Defense Attorney Alex Andryuschenko can help you defend your Los Angeles DUI case.
The PAS Test: Voluntary and Refusable—At Least in Court
Under California Vehicle Code § 23612(i), if you are over 21 and not on DUI probation, the officer must tell you that the PAS test is voluntary. That means you have the right to refuse it. However, if you are on probation or under 21, refusing the PAS can have serious consequences.
Even though the PAS is voluntary, many officers fail to properly advise drivers of their rights. Under certain circumstances, especially in criminal court, the failure to give this admonishment may be a critical flaw in the prosecution’s case.
But what about DMV license suspension hearings? That’s where things get more complicated.
Kazelka and the DMV: Different Rules Apply
In a recent appellate decision, Kazelka v. DMV (109 Cal. App. 5th 1239), the court held that DMV hearings are not bound by the same evidentiary requirements as criminal trials. Specifically, the court ruled that PAS results may be introduced by the DMV even if the officer failed to give the warning under CVC § 23612(i).
The court reasoned that the Vehicle Code’s admonishment requirement does not carry the same constitutional weight as Miranda warnings, and therefore, a violation does not automatically exclude the PAS results from DMV proceedings.
This less stringent standard comes from California Government Code § 11513(c), which governs administrative hearings like those held by the DMV. That statute allows the DMV to consider “any relevant evidence,” even if it would not be admissible in a court of law.
No Exclusionary Rule at the DMV: The Gikas Rule
The California Supreme Court’s decision in Gikas v. Zolin (1993) 6 Cal.4th 841 is still controlling law on this point. In Gikas, a driver arrested for DUI had evidence excluded in criminal court due to an unlawful detention. However, the Court held that this exclusion did not apply to the DMV hearing, meaning that evidence obtained through an illegal stop could still be used to suspend a license.
The Court explained that the exclusionary rule, which prohibits evidence obtained from unlawful searches or seizures—does not apply in administrative DMV hearings. This holding is consistent with the purpose of those proceedings: to protect public safety, not to punish, and therefore, the technical rules of criminal procedure do not necessarily apply.
This principle was echoed in Park v. Valverde (2007) 152 Cal.App.4th 877, where the court reiterated that DMV hearings follow a more flexible evidentiary standard. Together, Gikas and Park form a foundation for allowing evidence, even questionably obtained evidence—to be used in DMV actions. The rationale of the Park decision is the distinction between DMV hearing (designed to get a drunk driver off the street) and Court Hearing (designed to punish a drunk driver). The court held that the suppression of evidence at the DMV hearing would allow “protection of driver from himself” and disallowed suppression of illegally obtained evidence at the DMV hearing! The court made the distinction of pointing out that the officer did not forced the PAS test and did not intentionally lied but simply neglected to give the PAS admonitment. Thus, in cases where officer lies or forces a PAS test (physically or under coorsion or threat) Los Angeles DUI drivers still can suppress the results of such tests. Also, if the “…DMV … engaged in any misconduct of a type that should be deterred in the future.”… the evidence can be suppressed (Park).
Can the PAS Test Be Used in Criminal Court?
While the DMV can introduce PAS results without the voluntary test admonition, criminal courts are a different story. For a PAS result to be used against you in court, it must meet reliability standards laid out in cases like People v. Adams and People v. Coniglio. These decisions require that the device be properly calibrated and that the test was conducted under standardized conditions.
A skilled DUI defense attorney can challenge PAS evidence in court by attacking its foundation or raising constitutional issues such as unlawful detention or lack of proper advisement. Los Angeles DUI attorney and Criminal Defense Attorney win DUI cases in court and at the DMV.
Final Thoughts
As a Criminal Defense DUI Attorney in Los Angeles, I help clients navigate both the criminal and administrative consequences of a Los Angeles DUI arrest. The rules are not the same in Los Angeles DUI court and at the DMV, and understanding that distinction can mean the difference between keeping or losing your license.
If you or a loved one has been charged with Los Angeles DUI or is facing a DMV license suspension, don’t go it alone. Contact a Los Angeles DUI Attorney and a Los Angeles Criminal Defense Attorney today for a confidential consultation and personalized legal strategy.
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