Vehicle Code 23612 (i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs.
The person’s obligation to submit to a blood, breath, or urine test,as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.
Will refusal to submit to the PAS test and/or Field Sobriety Test, after being arrested for a DUI in Los Angeles, be used against me?
Ordinary – NO.
But as is the case in any litigation, it is up to a judge, even when the judge is wrong. Because the field sobriety tests are subjective, I always recommend that my clients not submit to the field sobriety tests or to the preliminary alcohol screening tests (PAS) with two exceptions. Drivers younger than 21 years of age and persons who are on DUI probation are required by state law to submit to the Preliminary Alcohol Screening Test and can lose their license for 1 year if they don’t submit to the PAS test.
Rumor has it that some police officers advise drives that failure to submit to PAS or the field sobriety test will be used by the court as “consciousness of guilt”. Meaning, if the case goes to trial, the prosecutor will be allowed to argue to the court that the reason the driver refused the FST or PAS because the driver is guilty, so rather than fail the field sobriety tests or blow above the limit, the driver decided to refuse to submit.
The police officers who tell that nonsense to drivers are wrong. The consciousness of guilt becomes an issue only when a driver refuses a blood or breath test that is performed in compliance with Title 17 and is offered after the arrest. California Vehicle Code 23612 (i) makes it clear that a driver is not required to submit to a PAS test and his obligations under the law are not satisfied if he agrees to do a PAS test. The results of a PAS test should and can be excluded at trial with a 402 motion. Since FSTs are voluntary, it would be unfair to allow the prosecutor to comment on what a person has a legal right to refuse to do. As opined by the California Court of Appeals in People v. Zavala, 239 Cal. App. 2d 73, when a person has a right to refuse to submit to a test,
“Such right, however, would be rendered valueless if the trier of fact were permitted to draw an inference of guilt from its exercise. We hold, therefore, that in the instant case, the appellant had a “right to refuse” to take the …. test and that it was an error for the trial court to admit in evidence the fact of the appellant’s refusal to submit to the test.”
Once again, a 402 motion should be used to prevent the prosecution from using the refusal to submit to the field sobriety test as a consciousness of guilt.
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