How to Challenge a PAS Breath Test in a California DUI Case
This has to do with the preliminary alcohol screening device (PAS) as it relates to DUI cases. Most police officers, whether they be in cars or motorcycles, will carry with them out in the field a preliminary alcohol screening device.
This is a small device which is used to detect whether or not somebody is under the influence of alcohol, and obviously, it's part of law enforcement's efforts to catch and convict people for DUI cases.
I've been doing this for twenty-five years and for most of that time that device had limited reliability, limited function and limited admissibility in a criminal DUI prosecution.
However, today that device is used more and more and prosecutors, with some success, are trying to get in the results from the PAS device against a defendant in a DUI prosecution.
PAS Breath Test Has Issues with Accuracy
Some of the limitations of the device are its accuracy, and of course, that's the most important thing in a DUI — which is having some sort of a device that can accurately measure a person's blood alcohol level.
The problem with that device is that even the prosecutor's own experts will have to testify that it has an error rate that's worse than the machine that is used at the police station.
So, the police pull somebody over and use the PAS device to basically just try to make sure whether they're going to waste a trip into the police station. They use that device to see how high the blood alcohol level is.
If it's a .08 or greater or anywhere near there, they're going to arrest the person, take them in and then put them in front of the big breath machine which is more accurate.
There are some law enforcement agencies, like in Ventura County, that actually have a machine that they use in their car which is actually pretty smart.
This is because then they get the blood alcohol much closer to the time of driving which is a stronger argument for them if the case were to be set for trial and the defense attorney were to challenge the expert and say you're getting a breath or blood reading hours after the pull over.
How are you able to figure out what the person's blood alcohol level was at the time of driving?
Who cares what the blood alcohol level was at the time that you got the blood back into the police station or hours later? We want to know what it was at the time of driving, and that's a pretty effective argument, especially if you can get some expert testimony behind it.
Challenge BAC at The Time of Driving
But this whole PAS device, now the prosecutors are trying to use the result in order to convict a person for a DUI and it's one of those games where if you blow high on the PAS device and the prosecutors says, your client blew high at the time of driving.
If you blow low on the PAS device and you blow higher on the machine, the defense attorney says, the person was lower at the time of driver, so it's a game back and forth between the prosecutor and the defense, because a lot of times in DUI cases because law enforcement is using the PAS device, you've got four readings.
You've got two readings from out in the field on the PAS device, and then you have the two reasons in the police station.
So, if all four of those are the same the prosecutors start to have a pretty strong argument that whatever that number is, that's what your client was and they have their experts use the results from the PAS device, the results from the breath test. Also, if the person takes blood they will use that.
So, when you're looking at evaluating whether you can attack this device, you certainly can, but the device alone is not going to be determinative as to whether or not somebody gets convicted for a DUI.
The device combined with other factors is really going to be the final answer. In other words, how was the person driving? Did the person get in an accident?
Why were they pulled over? How did they do on the field sobriety tests?
Do they have a prior criminal record for DUIs? How high was their breath result at or near the time of driving?
So, as you can see there's a whole host of factors that are going to play into whether or not somebody gets convicted of a DUI.
But, certainly understanding how the PAS device works and your defense attorney doing everything they can to use that result to your advantage makes sense in a DUI case.