Nearly all law enforcement agencies in the State of California equip their patrol officers with small hand-held devices known as Preliminary Alcohol Screening devices. Most commonly referred to as a “PAS” device, these breathalyzers are carried in small carrying cases in the officer’s patrol vehicle. PAS devices are small, battery powered, instruments that are frequently thrown in the trunks of police vehicles and are often dropped on the pavement. The batteries may die or the device may be effected by nearby radio frequency or electronic energy waves. Also, PAS devices are not specifically designed to detect only “ethanol”, the active compound in alcoholic beverages. PAS devices will identify any “methyl” based chemical on the breath and identify it as alcohol.
The PAS device should be used by field police officers to supplement Field Sobriety Testing and to determine if the driver has consumed alcohol. In today’s world, however, the PAS device is actually used to estimate a driver’s blood/alcohol content closer to the time of driving than the more traditional “evidence” tests. This allows the investigating officer the opportunity to consider that the blood/alcohol level revealed by the PAS device is at least partially responsible for the driver’s level of impairment.
In theory, law enforcement officers should be considering the totality of their investigation when coming to the conclusion of impairment. The officer should consider the driving pattern or traffic collision. He should also consider the driver’s demeanor and response to questions. He should consider pre-existing medical or physical ailments the driver may have. He should also consider the surface the driver is standing on and the weather conditions. Finally, the officer should also consider the performance of Field Sobriety Tests, including the PAS test. The reality, however, is that many law enforcement officers pay little attention to anything other than the results of the PAS device. They will “go through the motions” of asking questions and administering Field Sobriety Tests, but these are often pretexts to simply getting the driver to blow into the PAS device.
There are hundreds of examples of a driver performing flawlessly on the Field Sobriety Tests (FST), but who is still arrested when the PAS device suggests a blood/alcohol level at or above the legal limit. There are also instances where a driver performs well on FST, only to be arrested when he or she exercises their right to decline the PAS test.
It has become a reality in California DUI enforcement that police officers put more trust in the accuracy of a PAS device than in their own observations and judgement. The PAS device has become one of the primary standards by which DUI arrests are made. The problem is that PAS devices are not perfect. They often malfunction or overstate the true blood/alcohol.
If a Preliminary Alcohol Screening test was used in your DUI arrest, the DMV will propose to use that test as evidence you were lawfully arrested. Attacking the accuracy and admissibility of the PAS test can be a critical element in winning an Administrative Per Se Hearing and, therefore, preventing the suspension of your driver license. The DMV Defense Experts at California Drivers Advocates have been attacking PAS devices at these hearings for years. Give us a call. We can assist you in attacking the result of the PAS test in your case.
During the course of a DUI investigation at the side of the road, a law enforcement officer will commonly administer a series of Field Sobriety Tests (FST), comprised of various balance and coordination tests. The most commonly administered FST in California are:
- Horizontal Gaze Nystagmus: This is where the officer will check the movement of the driver’s eyes on a horizontal plane to determine if the tell-tale signs of “jerky movement” (known as nystagmus), is present.
- One Leg Stand: This test involves the driver standing on one leg with the other leg elevated and counting for a specified period of time without dropping the elevated foot
- Walk and Turn: Commonly referred to as the “heel to toe” test, this requires the driver to take nine heel-to-toe steps, turn around, and take an additional nine steps in return.
- Romberg: This requires the driver to stand with heels and toes touching on the ground, tilting the head back and closing the eyes. With eyes closed, the driver is to estimate the passage of 30 seconds.
- Finger to Nose: This requires the driver to stand with heels and toes touching on the ground, tilting the head back and closing the eyes. In this position, they driver is instructed to alternately touch his index finger to the tip of his nose.
- Finger Count: This requires the driver to touch the tip of his thumb to the tip of each index finger on one hand in a specified order while counting out loud.
- Hand Clap: This requires the driver to rotate the palm of one hand into the palm of the second hand in a clapping motion while counting out loud.
- Reciting the Alphabet: This requires the driver to verbally recite the English alphabet without singing.
- Backward Counting: This requires the driver to count backwards from a specified number and to stop counting at another specified number.
Each of these Field Sobriety Tests is considered a “divided attention” test. The theory is that a person who is impaired by alcohol will have difficulty performing when their attention is divided by different tasks.When a DUI investigation occurs at the side of the road, there are essentially four steps that occur prior to an arrest:
Step One: Is initial contact. This occurs when a police officer originally meets with a driver during a traffic stop, traffic collision investigation, or other contact. This is when the officer will begin evaluating the driver for any objective symptoms of alcohol intoxication.
Step Two: Is the interview stage. This occurs when the officer asks an entire series of probing questions to determine where the driver has been, where he is going, what he has eaten, has he consumed alcohol, and does he have any medical or physical problems.
Step Three: Field Sobriety Testing. This is where the investigating officer should instruct and demonstrate each field sobriety test.
Step Four: Preliminary Alcohol Screening Test. This is where the investigating officer actually deploys the PAS device to estimate the driver’s blood/alcohol concentration.
Unless a driver is under the age of 21 or is on DUI probation for a previous DUI, the Preliminary Alcohol Screening (PAS) test is optional. If a law enforcement officer seeks to administer a PAS test as part of his or her DUI investigation, the California Vehicle Code (CVC) specifically mandates that the officer advise the driver of their right to decline the PAS test. CVC section 23612 (i) reads,
“If the officer decides to use the 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 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.”
In the real world of law enforcement, however, police officers will routinely omit this step and simply demand that the driver submit to a PAS test. None the wiser, many drivers will submit to the officer’s demand and provide a breath sample that can be used against them in court and at the DMV.In all instances, a driver should refuse to submit to a Preliminary Alcohol Screening test unless they are:
- Under the age of 21 years.
- Currently on DUI probation from a previous DUI conviction.
When a law enforcement officer actually administers a PAS test, he should:
- Ensure that the PAS device has been properly maintained and checked for accuracy every 10 days or every 150 uses.
- Ensure that the device’s battery is properly charged.
- Ensure that the PAS device is not being affected by radio frequency interference (RFI) or energy pulses.
- Conduct a minimum 15-minute period of observation prior to the administration of the PAS test to ensure the driver did not ingest anything or have any other issue which could corrupt the breath samples.
- Conduct an “air blank.” This requires the officer to reset the device which causes it to go through a set up sequence and to verify there is no residual air in the device from previous testing.
- Ensure the PAS device has an internal operating temperature that is within required limits.
- Affix a new and sanitary mouth piece to the device before the first blow and again before any subsequent blows.
- Have the driver provide at least two samples, with readings that are within .02% of one another to establish accuracy. There must be a two-minute “reset” period between the two samples.
- Record the readings on his Sworn Report, Arrest Report or other documents.
In order for the Department of Motor Vehicles (DMV) to suspend or revoke a person’s driving privilege, they must establish:
- The police officer had a lawful reason to contact the driver and then upon doing so, believe that he or she was driving while intoxicated;
- The police officer had a lawful reason to arrest the driver for DUI;
- The accused was driving a motor vehicle with a blood alcohol concentration of .08% or greater (.01% or greater if under 21 or on DUI probation).
The DMV will seek to use the results of the PAS test in two ways.
The lawfulness of the arrest: Used in conjunction with Field Sobriety Tests and other observations made by the officer, the DMV uses the PAS to establish evidence of intoxication. This leads to the DMV’s belief that the arrest was justified.
The driver’s actual blood/alcohol concentration: Classically, the DMV will primarily rely upon the “post arrest” blood or breath test to establish the actual blood/alcohol concentration of the driver. However, there are instances where the evidentiary blood or breath test cannot be used by the DMV or where the evidence test cannot be presumed accurate. In those cases, the DMV will often fallback on the PAS results to establish the actual blood/alcohol concentration.
Also, the DMV will frequently seek to introduce the results of a PAS device when the evidentiary blood or breath samples suggest that the driver’s blood/alcohol concentration was actually below the legal limit at the time of driving. For example, if a chemical blood test reveals that a driver’s blood alcohol concentration was .07 at the time he was tested in the station, but the PAS test taken at the side of the road indicates the blood/alcohol concentration was .08%, then the DMV may seek to introduce the results of the PAS test to demonstrate that his blood/alcohol concentration was .08% at the time of driving and had fallen to the .07% by the time of the blood draw.
Without question, the DMV is permitted to presume that a PAS device will reveal the presence of alcohol (or some other methyl based chemical) on the breath. But, for the DMV to actually consider the actual numerical results of the PAS test, requires that the DMV demonstrate that there is a proper foundation for the introduction of numerical readings or that the test was administered in substantial compliance with the provisions outlined in Title 17 of the California Code of Regulations. These are complicated areas of the law and require that the driver present “affirmative evidence” to rebut the accuracy of the PAS test. It is nearly impossible for the average driver in California to understand how to attack the admissibility of a PAS test. This type of legal attack requires the expertise of a representative with years of experience. The DMV Defense Experts at California Drivers Advocates (CDA) are precisely that team of experts. Call us and we’ll get the job done.
Call Us Today to Begin Attacking the PAS Test in Your APS Hearing.
It is true the DMV has broad powers to presume the accuracy of most of their case. However, when it comes to the numerical readings provided by a Preliminary Alcohol Screening Test, there are a number of issues to be considered. Properly attacking the foundation or Title 17 Compliance are but a few ways to ensure the DMV cannot consider the numerical readings provided by the arresting officer’s PAS device.
This can be a critical step in the successful defense of your driving privilege. With the DMV trying to prove your guilt, you can’t afford to leave anything to chance. Call California Drivers Advocates today. We have been attacking the accuracy and the admissibility of PAS devices throughout the State of California for years. Time is not on your side, so call CDA today. We’ll get the job done right.
More about Administrative Per Se (DUI) Hearings at the California DMV