As observers of Memorial Day in 2016 have a good time perhaps partaking in an adult beverage or two, it is always advisable to avoid drinking and driving whenever possible both for your own safety and the safety of other California drivers. However, all too often, whether a drive is driving under the influence or not, they may face the prospect of being stopped or detained for suspicion of driving under the influence of alcohol or drugs. In many instances, drivers will be subjected to a road side alcohol test. The device used to administer the road side alcohol test is called a Preliminary Alcohol Screening device or “PAS” machine. In some instances, a driver may be released from any further investigations if they agree to take the test and their blood alcohol level is below the standard for prosecution of 0.08 (for under 21 drivers the standard is a minuscule 0.01). However, in many instances the test results meet the criteria of criminal prosecution of 0.08 and the driver is then arrested and transported to a station or a mobile police station where they are required to do another breath test on a more traditional breathalyzer test machine. In many instances there can be hours between the two tests and different results. The question then arises, whether you are being prosecuted in Los Angeles, Palmdale, Ontario, West Covina, San Ana or any other city in California as to the admissibility and reliability of a PAS test in a criminal prosecution for DUI. These question can be complicated and it is always advisable to consult with a qualified DUI Attorney when arrested for DUI in California.
- Admissibility of PAS Test in California DUI Cases
The first thing a driver should know about the roadside alcohol tests in California is that a driver is not required to take such a test when stopped by the police. One cannot be punished for refusing to take the PAS test and a lack of PAS test results may assist in defending a DUI case. However, it should be made clear that a post arrest breath test on a standard breath test machine which is usually required at a police station cannot be refused or a driver may lose their license for a year on a first time refusal and face additional penalties if convicted in a DUI criminal prosecution. If a driver did not have anything to drink or is quite certain they are not driving under the influence, they may opt to take a roadside PAS test which can lead to the dismissal of or no filing of criminal charges. Under California Vehicle Code section 23612 (g)((2)(B)(i), law enforcement is required to advise a detained driver that the taking of a PAS test is optional. A driver under the age of 21 may not refuse to take a PAS test and will face a license suspension if the test is refused.
If PAS results are used in a criminal prosecution, they can only be admitted to prove certain evidentiary issues. A PAS test is admissible to prove a person was driving under the influence if the tests were given either in compliance with title 17 of the California Code of Regulations or the following requirements are proved by the prosecution:
- The PAS machine was properly functioning;
- The PAS test was properly administered; and
- The PAS test was given by a qualified operator (See People v. Adams (1976) 59 Cal.App.3d 559.
Whether these requirements have been met should be explored by a qualified DUI attorney who will often employ an expert toxicologist to determine whether a PAS test was properly administered. If you are being prosecuted for driving with a blood alcohol concentration of 0.08 or higher, typically the results of a PAS test, if a proper foundation is laid by the prosecution, can still not alone be sufficient to sustain a conviction absence test results from the more reliable machine test given at the station. However, if a driver refused to take the test at the station, then a PAS test result may be used as evidence to show that a person drove under the influence pursuant to a charge of driving under the influence of alcohol as defined in California Vehicle Code section 23152(a). However, the reliability of PAS tests results can be challenged in many respects by a competent California Criminal attorney.
- Reliability of Road Side Alcohol Test Devices
Unlike DUI blood tests, a breath test does not actually measure a driver’s blood alcohol content. Instead a breath test device such as a PAS machine must convert mathematically blood alcohol into a rough equivalent into a driver’s actual blood alcohol content. As such, a defense attorney expert in a DUI trial will properly testify that breath tests and most certainly a PAS test is less reliable than a blood test to determine blood alcohol content.
Moreover, it has been found that certain medical conditions can result in a false high PAS blood alcohol test result. Specifically, if a person suffers from GERD (gastric regurgitation) or has had a gastric bypass surgery, a PAS test can result in a false positive high BAC result. Typically, PAS tests are used as another piece of evidence to show a person was driving under the influence and is often described as a glorified yet unreliable filed sobriety test. For that reason, it is often advised by experts that drivers over 21 in California should exercise their right not to take such a test. However, if a driver submits to such a test and the test is used in a criminal prosecution, there are many ways to attack the admissibility and reliability of the road side breath test which can lead to the dismissal of or reduction of DUI charges.
Accordingly, if a person in California is arrested for DUI in California where a PAS breath test is used as evidence, they should immediately contact a California criminal DUI attorney to determine the best course in defending themselves against a criminal prosecution that can lead to costly penalties including jail or prison time.
If you are in need of a lawyer to help fight or assess DUI or other criminal charges against you in California, please contact our at 844-210-1701. We have offices throughout Southern California including Los Angeles, Ontario, Palmdale and Pasadena and are ready to assist you with a free consultation 24 hours a day.