There is a wrinkle that is especially tricky for the unwary.  There are now PAS testers that have been equipped with printer capabilities, and which are used as the evidential breath test device.  Orange County and Ventura County are two places where a motorist may encounter this.  The fact that a printer has been hooked up to the same old inferior technology doesn’t make it any better, but it can lead someone to lose their driver’s license when they shouldn’t. 

All pre-arrest roadside testing is optional.  However, post-arrest roadside testing is NOT optional; that is what California’s Implied Consent law says, that every driver in California has already consented to a test of their blood or breath to determine alcohol content when lawfully requested by a peace officer.  This means that when the officer asks the motorist to take a roadside test prior to arrest, and the motorist refuses, no problem.  But when the motorist is then placed under arrest, and re-offered a chance to use the same inferior machine and refuses, big problem.  This is now considered a “refusal” of a post-arrest test, and can result in a license suspension of one year or more, with no opportunity for a restricted license during that time.

How can motorists protect themselves?  One way is to politely decline all roadside breath tests and insist on a post-arrest blood test.  Another is to politely inquire as to whether the hand-held tester is being used as a pre-arrest or post-arrest test.  No matter what, if you’ve been subjected to roadside breath testing, you probably need a lawyer.  A DUI defense lawyer will be able to help you in your time of need, and work to suppress any tests that were improperly performed.

Calibration of the breath machine being off Alcohol being trapped in the mouth Belching or burping within 15 minutes of being tested Medical conditions making defendant an improper subjectfor breath testing GERD: Gastro Esophageal Reflux Disorder Official testing protocols not being observed Breath test operator not being properly trained Elevated body temperature Fundamental assumptions inapplicable; machine is based on “averages” that may or may not apply. Non-specificity issues. Other compounds on the breath look like alcohol to the machine. Breath testing during the “absorptive phase” significantly over-estimates true blood alcohol level (and the absorptive phase can last for hours after drinking stops!) On many machines, the harder you blow, the higher you go!

Not all breath tests are created equal.  There are some breath tests that are technologically inferior, that have a greater risk of giving falsely elevated results, and, until recently, were only admissible in court to show the mere presence of alcohol.  They are called Preliminary Alcohol Screening tests, or PAS tests for short.  These are the hand-held breath machines that are used in the field, usually in conjunction with the physical field sobriety exercises.

These PAS tests have historically been admissible in court to show only that the motorist consumed alcohol prior to coming into contact with officers.  They were recognized as being unreliable, and susceptible to error.  Unfortunately, recent court opinions have opened the door to these PAS test results being introduced at trial, not just to show the presence of alcohol, but to show concentration too.

Taking a pre-arrest PAS test is optional. Law enforcement officers are supposed to tell the motorist of this fact, but unfortunately, many of them don’t.  DUI defense lawyers hear over and over again that subjects are simply told “blow in this,” or not told anything at all, only to have the PAS machine thrust into their mouths.

This is contrary to the law. California Vehicle Code 23612 (h) and (i) specifically provide that the PAS test is a Field Sobriety Test, and may be used by an officer as a further investigative tool.  However, if the officer decides to use the PAS 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,” and that the person’s obligation to submit to a chemical test under California’s Implied Consent Law is not satisfied by submitting to the PAS test.  The statute further states that “The officer shall advise the person ... of the person’s right to refuse to take the Preliminary Alcohol Screening Test.”

Incredibly, defense attorneys hear every day that officers violate their obligation to tell subjects of the optional nature of the test.  This is a law that is observed in its breach.  Nine times out of ten, motorists take the test believing they are obligated to do so, when the truth is exactly the opposite.

Once the test is taken, the numeric results of the PAS test are admissible in court.  California cases have decided that this is so, even where procedural regulations are not followed.  These attacks, the court has reasoned, go to the weight of the evidence, not the admissibility.  This has opened the door to the admission of dubious evidence from a technologically inferior machine.  The machine hasn’t changed over the years; unfortunately, the law about the admissibility of the results has.