What is the Difference between a PAS Test and a Chemical Test?

Monday, January 25th, 2016

Most people are unaware that many California DUI stops include two separate and distinct breath tests. And people are often confused about whether they must provide a breath sample to both or either test. It is admittedly confusing, and most people are surprised when I tell them that one of the breath tests is required and the other is not.

The two tests I am referring to are 1.) the preliminary alcohol screening test (PAS test), and 2.) the chemical breath test. While they are both “breathalyzer” tests, their distinction lies in when the DUI arrest is made.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Following a California DUI stop, but before a DUI arrest, an officer may request that the suspected drunk driver perform field sobriety tests which, most people know, includes the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. What most people don’t know, however, is that the breathalyzer test requested by officers before an arrest is also a field sobriety test. This is the PAS test. And like the other field sobriety tests, the PAS test is optional.

The investigating officer must advise the DUI suspect that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Field sobriety tests, including the PAS test, are a means to determine if the officer has the required probable cause to arrest the DUI suspect for a California DUI.

If the officer has the requisite probable cause to make an arrest, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a PAS test and a chemical test.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, licensed California drivers have impliedly consented to provide a chemical test following a lawful DUI arrest.

The post-arrest chemical test can be either a breath test or a blood test. If a person opts against providing blood, they must provide a breath sample. And for this breath test, they will be taking a breathalyzer very much like the PAS test.

The short version of this article is this: A pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample and provided that the arrest was lawful.

Share

Hiring the Right California DUI Lawyer

Monday, January 11th, 2016

You’ve jest been arrested for a California DUI making it one of the worst nights of your life. As the officer fastens the handcuffs around your wrists and places you in the back of their squad car, you think to yourself, “How am I going to get out of this mess?”

The legal system is complicated, to say the least, and most people know that a lawyer is necessary help them at this time when they’re most vulnerable. So how does someone choose the right attorney to help them out of this legal mess?

The first thing a person should do when looking for the right DUI attorney is research. You don’t buy the first car you see at the dealership. With so much at stake, why would you hire the first attorney you come in contact with? Ask family and friends for referrals. You’d be hard pressed to not find anyone who hasn’t used a lawyer in the past. Check user-based rating websites like avvo.com or yelp.com to see what others who have used the lawyer’s services have said. Check the California Bar Association’s website at calbar.org to check to see if the lawyer whom you have researched has had any disciplinary action taken against them.

When attorneys become licensed to practice law, they are legally allowed to practice any area of law, but this does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly criminal defense, which may include DUI law. While the law in general is complicated in and of itself, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend a DUI case every couple of months.

In doing your research, you will inevitably come across many lawyers willing to take your case on. Many of those attorneys will claim that they can help you because your case is a “slam dunk.” I have been practicing DUI for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them to represent them in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.

Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers range from $1000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for. After all, you are entrusting this person with representing you before a court of law.

While it may have been the worst night of your life, you don’t have to face subsequent criminal case alone. But make sure that the lawyer you’ve chosen to represent you for a California DUI is the right lawyer for you.

Share

Hawaii Decriminalized DUI Chemical Test Refusal

Tuesday, December 8th, 2015

According to the Hawaii Supreme Court, a person can no longer be subject to criminal action for refusing a chemical test under Hawaii’s implied consent law.

In 2011, Yong Shik Won was arrested for driving under the influence. After being transported to the police station, he was provided a form which explained that, by virtue of having a driver’s license and operating a vehicle, he had impliedly consented to giving a chemical test following a DUI stop.

The form also stated that Won was not entitled to an attorney prior to providing the chemical sample and that refusal to submit to a chemical test could subject him to criminal punishment.

Unlike many states, including California, Hawaii’s legislature in 2011 made it a petty misdemeanor to refuse a chemical test following a DUI stop. The penalties for a petty misdemeanor are 30 days in jail and/or a $1,000 fine.

Won was convicted and his appeal made it all the way up to Hawaii’s Supreme Court.

"This court has stated unambiguously that for consent to be in fact, freely and voluntarily given, the consent must be uncoerced," Justice Richard W. Pollack wrote for the court majority. "It is manifestly coercive to present a person with a ‘choice’ that requires surrender of the constitutional right to refuse a search in order to preserve the right to not be arrested for conduct in compliance with the constitution."

MADD, who has historically sought to diminish constitutional rights in the name of safety, not-so-surprisingly disagreed with the decision.

“In this Thanksgiving season, we are not thankful and I think it’s very bad timing as we go into a very dangerous holiday season,” said Carol McNamee with MADD Hawaii.

The Court, in its decision, also noted that the coercion was heightened when the jail sentence for refusal was six times greater than that of the actual DUI conviction; five days in jail.

The decision could potentially affect up to 3,000 cases according to City Prosecutor Keith Kaneshiro. Breath and blood tests of active cases, some of which date back to 2011, could be thrown out as evidence. It is, however, still possible to prosecute DUI cases, even without a breath or a blood test, using officer observations and other evidence of intoxication.

It is a breath of fresh air to see a high court acknowledge and address what Lawrence Taylor refers to as the DUI exception to the Constitution. For the record, I do, in fact, support safety in our streets, but not at the cost of our constitutional rights.

Share

What is the Rising Blood Alcohol Defense?

Monday, November 30th, 2015

California DUI law requires that a person’s blood alcohol content be at a 0.08 percent or higher at the time they were driving. However when a person drinks, their blood alcohol content is either rising or falling. This means that, at the time the driver was actually driving, his or her blood alcohol content could have been lower than the chemical test reading.

When a person drinks, alcohol enters the blood stream after it is absorbed through the walls of the stomach and the small intestine. This process is called absorption and during this time, the person’s blood alcohol content will continue to rise. When the person stops drinking, absorption stops and a person’s blood alcohol content peaks. After the person’s blood alcohol content peaks because they have stopped drinking, it then begins to fall.

If we were to chart a person’s blood alcohol content as they drink, stop drinking, and begin sobering up, we would see a lopsided bell curve, rising sharply and falling gradually. The more alcoholic drinks are and the faster someone drinks them, the quicker the blood alcohol content rises.

A person’s BAC can be determined in several ways. The first is with a preliminary alcohol test (also known as a “PAS” test) which is a pre-arrest breathalyzer. The PAS test is a field sobriety test is not mandatory. The chemical test, on the other hand, is mandatory and can be either a blood test or a breath test after a person has been lawfully arrested for a California DUI.

If only one test is done and only one BAC level determined, we’ll only where on the curve the person was at the time they took the test. In other words, there’s no way to determine whether the person’s blood alcohol content was rising or falling.

When there are two BAC readings at two different times, however, we can determine whether a person’s BAC is rising or falling because one reading will be higher than the other.

Take, for example, a person who is pulled over at midnight for drunk driving. Following the stop at around 12:20am, the officer does a PAS test. The PAS test indicates that the driver’s BAC is 0.09 percent. Because the driver is over the legal limit of 0.08 percent, the driver is arrested on suspicion of a California DUI. Following the arrest, the driver provides a blood test for the mandatory chemical test. The blood test is performed at 12:45am and the results show a blood alcohol content of 0.14 percent.

This is a rise of 0.05 percent in the 25 minutes between the PAS test and the blood test. Therefore, if you to track the BAC level backwards in time to the last point the person was driving at midnight, it is possible that the driver’s blood alcohol content was as low as 0.05 percent.

Conversely, it is also possible that the later BAC reading is higher than the earlier reading which would indicate that the driver’s blood alcohol content was falling.  Therefore, unfortunately, it is also possible that it was much higher at the time they were driving.

While this may serve as a defense to California Vehicle Code section 23152(b) – driving with a 0.08 percent blood alcohol content or higher – it may not serve as a defense to California Vehicle Code section 23152(a). If a person “drives under the influence,” they can still be convicted of a California DUI under California Vehicle Code section 23152(a). To prove that a person is “driving under the influence,” the prosecution typically uses the officer’s observations of poor performance of field sobriety tests, poor driving, and the “objective symptoms of intoxication.”

If the prosecution, however, cannot prove that a person was under the influence, it may be possible to they were under the legal limit of 0.08 percent at the time they were driving using the rising blood alcohol defense.  

Share

Should You Take a Breath or a Blood Test?

Monday, November 16th, 2015

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.

 

Share