Preliminary Alcohol Screen (PAS ) Test F.A.Q.
One question I am often asked is whether a driver has the right to
refuse to take the roadside Preliminary Alcohol Screen (PAS) test
after being pulled over for suspected driving under the influence of
alcohol (DUI). Vehicle Code section 23612 authorizes the arresting
officer to use the handheld PAS device to determine the level of
alcohol in a driver’s blood. However, this statute also states that
the PAS test is voluntary.
As a condition of being issued a driver license, under California’s
implied consent law, Vehicle Code section 23612(a)(1)(A), a driver is
deemed to have provided his or her consent to a blood, urine or breath
test at the request of an officer when being “lawfully arrested” for a
suspected DUI. These tests are routinely preformed at the
stationhouse or jail, not out in the field. Failure to submit to one
of these tests subjects the driver to additional penalties during a
subsequent DUI criminal prosecution. The law goes as far as requiring
that the arresting officer warn the driver that his or her failure to
submit to the required chemical testing will result in a fine,
mandatory imprisonment, if convicted, and the automatic suspension of
the person’s license for a period of one year.
This, however, does not mean that a driver must take the PAS breath
test. In fact, the law requires that the arresting officer advise the
driver of his or her right to refuse to take the PAS test before it is
performed as part of the various Field Sobriety Test (FST) procedures.
Furthermore, at least one recently published California Court of
Appeal decision, People v. Jackson, (November 12, 2010, No. A128782)
__Cal.App.4th__[2010 D.A.R. 17231] held that a defendant’s refusal to
take the PAS test cannot be used as evidence of guilt in a criminal
prosecution. Unlike other FSTs, the refusal to take the PAS test is
protected by statute.
This article is not intended to be legal advice. The specific facts of your case should be discussed with legal counsel. Contact the Law Offices of Eloy I. Trujillo today to discuss your case with an experienced Bay Area DUI Lawyer.
Eloy I. Trujillo is a practicing attorney with offices in San Francisco, CA and Oakland, CA.
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