A Preliminary Alcohol Screening (PAS) device, commonly referred to as a PAS breathalyzer, is a tool law enforcement uses during DUI investigations. Its primary function is to help officers determine if a driver is under the influence of alcohol. While it’s a vital tool in DUI cases, the PAS test is optional in many circumstances.
This image is one of a preliminary alcohol or a PAS Breathalyzer in California: What You Need to Know screening test. It is the same device used by law enforcement officers for the purpose of making a DUI arrest.
What is a PAS Breathalyzer?
The PAS breathalyzer is used as part of a DUI investigation, typically after an officer conducts field sobriety tests. Although it is a preliminary test, its results can still play a significant role in whether an officer decides to make an arrest. However, it’s important to understand that by the time the officer asks for a PAS test, they have often already formed an opinion on whether or not you are intoxicated.
The Difference Between PAS and Post-Arrest Chemical Tests
The PAS breathalyzer is not the same as the chemical tests administered after an arrest. The key difference is that the PAS test is optional unless you are under 21 years old or on DUI probation. Refusing the PAS breathalyzer typically has no immediate legal consequences. You have the right to decline this test, and your refusal cannot be used against you in court. However, once you are arrested, you are required by law to take a chemical test (either a blood or breath test). Refusing the post-arrest chemical test can lead to a one-year license suspension for first-time offenders and longer suspensions for those with prior offenses.
California DUI Laws and the PAS Breathalyzer
In California, the PAS breathalyzer is part of the field sobriety testing process. It helps the officer determine if there is enough probable cause to make an arrest. This test usually follows the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. After completing these physical tests, the officer may ask you to take the PAS test.
When the PAS Breathalyzer is Mandatory
There are two situations where the PAS test is not optional:
- Drivers under 21 years old: If you are underage, you must take the PAS test when requested.
- DUI probation: If you are currently on probation for a prior DUI conviction, you are required to take the PAS test, regardless of whether you have alcohol in your system or not.
PAS Device Calibration and Accuracy
Law enforcement agencies typically maintain their own PAS breathalyzer devices, and these are regularly calibrated by the department’s PAS coordinator. The machines are tested using a solution with a predictable value, ensuring that they read just above or below a specific threshold. These calibration logs are accessible and can be inspected as part of your defense, especially if you want to challenge the accuracy of the PAS results.
Using the PAS Breathalyzer to Your Advantage
In some cases, the results of the PAS test can actually work in your favor. If you’re pursuing a rising blood alcohol defense, the difference between the PAS and chemical test results can indicate that your blood alcohol level was still rising at the time of the arrest. For example, if the PAS test showed a BAC of 0.07 and the later chemical test showed 0.10, this could suggest that your BAC was below the legal limit while you were driving.
Conversely, if the PAS test shows a higher BAC than the chemical test (e.g., PAS shows 0.10 and the chemical test shows 0.07), the PAS result may present problems, as it reflects your BAC closer to the time of driving.
Challenging the PAS Test in Court
If the PAS results are unfavorable, your attorney can challenge them in several ways:
- Calibration logs: If the machine was not properly calibrated, the results could be invalid.
- Officer error: Law enforcement may not always follow proper procedures when administering the test.
- Mouthpiece contamination: The failure to change mouthpieces between tests can lead to inaccurate readings.
Additionally, your attorney can use subpoena powers at the DMV hearing to obtain calibration logs and records of the PAS device’s use.
This is a picture of a DMV subpoena. It can be used for the purpose of getting the breath, use and calibration mogs. These machines must be maintained to certain specifications. If the records show that they are not, then the validity of the testing can be questioned important and potentially be helpful for your case. A copy of a blank subpoena form to be used in your APS hearing can be found here.
What are the technical limitations or potential inaccuracies associated with PAS breathalyzer devices?
PAS breathalyzer devices are not as well-maintained as chemical testing machines used for evidential purposes. The PAS breathalyzer is solely used in the field to help officers determine whether a person may be under the influence. Unlike chemical tests, which are used in court as official evidence, PAS breathalyzers serve as preliminary screening tools and are not subject to the same level of maintenance and scrutiny.
How does the PAS breathalyzer account for variables such as medical conditions or substances that might affect the results?
It doesn’t. The PAS breathalyzer only measures the amount of alcohol present in a person’s breath. It does not account for medical conditions, medications, or other substances that could influence the reading.
Are there specific calibration or maintenance protocols required for PAS devices to ensure accuracy during DUI investigations?
Yes. PAS devices require calibration and maintenance logs, which are kept by the department conducting the arrest. Each department has a designated PAS Coordinator responsible for overseeing these records. These coordinators can be subpoenaed in court, and their maintenance logs can be obtained as part of the defense strategy.
What are the legal precedents or case laws in California that have influenced the use and admissibility of PAS breathalyzers in court?
There are established legal precedents allowing PAS breathalyzer results to be admitted in court. However, case law also supports a person’s right to refuse a PAS test. If a driver lawfully refuses a PAS breath test, prosecutors cannot use that refusal against them in court as evidence of guilt.
Conclusion
The PAS breathalyzer is a crucial tool in DUI investigations, but it is optional unless you’re under 21 or on DUI probation. Understanding the differences between the PAS test and post-arrest chemical tests is essential to defending against DUI charges. If you have questions about a PAS breathalyzer or need help with your DUI case, contact our office today for expert legal guidance.
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