PAS breath test
A PAS device is a portable breath-testing machine. The courts have ruled that the PAS test is not a determiner of blood alcohol content but can be used as an “investigative tool” to establish probable cause for a DUI. In CA, the vast majority of police use the Alco-Sensor IV. What makes this so popular is that the results can be downloaded through the police car’s computer.
Technically the police are supposed to advice the drivers that they don’t have to take the test, but this is rarely given. The reason that it is not an important right is that each driver in California consents to have their blood alcohol determined under the right circumstances under the “implied consent law.” Southern California DUI Defense Attorney James Fox has challenged the results of PAS tests in court and has had them excluded. It’s important to note that the government has to show that the police department followed rules set out under CA law in the way the officer was trained to use the device and the way the equipment was maintained. Also, the government has to show that the equipment was in fact properly maintained, the test was correctly given and the operator (police officer) was qualified to give the test (had proper training). A qualified DUI defense attorney will look to see if sufficient volume of breath was given during those tests, and will demand the maintenance and calibration logs of any device used.
In cases where the driver refuses to take a chemical test after being lawfully arrested, the DMV has imposed a one-year mandatory suspension of driving privilege. This cannot be shortened n any way. In order for the DMV to find that someone refused, they have to sow that the police officer had reasonable cause to believe that 1) the person was under the influence of drugs or alcohol, 2) the person was arrested or detained, 3) the person was advised that the refusal would be a suspension and 4) the person failed to take chemical test after being requested to do so.
It is very important to note that a PAS test is not the same as a chemical test for refusals. If the officer asks you take a PAS test, you will have no penalty if you refuse. Please note that you don’t have to say you are refusing, silence is sufficient to constitute a refusal. Also, hedging, stumbling about, and dragging out the process of consenting constitutes a refusal. What I tell clients is “if it quacks like a duck and it walks like a duck, it’s a duck.” The meaning of all this: if a police officer asks you to provide a sample and you don’t do it, you will get arrested and charged with a refusal.