The preliminary alcohol screening device (PAS) is used by law enforcement when they pull vehicles over when they feel like somebody is borderline intoxicated. That's usually when I see it used. They can use it whenever they want, but they don't need to use the PAS device if somebody falls drunk.
They can bring them into the station in Los Angeles, and they can administer the Intoxilyzer 3000 alcohol test, where they blow into a tube. It registers. A little receipt spits out and is placed in the paperwork given to the prosecutor and the defense to show the person's blood-alcohol level.
But, if it's close and they end up arresting somebody and taking them in, and they blow like a .05, for example, that case is not likely to be filed by the prosecutor, so now they just wasted their time.
They may not even send that type of case to the prosecutors. So, they use that little preliminary alcohol screening device, which is a hand-held device that they carry around with them in the car. If somebody blows over the legal limit of that, the police feel confident to bring them into the station and let them blow into the machine.
Often, what I see happening is people get confused between the two and say at the police station, I already blew, I'm not blowing again, which is a mistake. They'll get you for a refusal for that. You can refuse that PAS device, which most people wouldn't know.
That PAS device is not the most accurate, and that's one of the ways to discredit it – the PAS device- which is their expert – the prosecutor's expert is going to have to admit it's not that accurate.
I've been doing this for twenty-five years, and there was a long time you couldn't even introduce the PAS result in a jury trial, for example, because it's so unreliable. Now, they've given it a little more room, but a long time, I'm seeing the PAS device is one thing, and the breath or blood result is an entirely different number.
That could be because time passes between the PAS device and then actually doing the test, but it could also be because the PAS device is not very accurate. You can get a defense expert to say that without question, and even the prosecutor's expert will have to admit there are issues with PAS devices.
PAS Improper Calibration
Another issue to attack and discredit a PAS device in a DUI in Los Angeles is to say that it wasn't appropriately calibrated. You have to make sure that things are working right, and the police don't always do that. If it's not working directly if it's taken out of service close in time to when the client has been pulled over for a DUI, you indeed argue that the machine wasn't working correctly, and therefore, that result is not accurate.
What ends up happening is, depending on what the PAS device is in comparison to whatever the blow is back at the station or whatever the blood is, you're going to see both the defense and the prosecution trying to use the PAS device by saying, the PAS device is much closer to the time of driving, so that's the accurate result.
The prosecutors will say that if, for example, you blow a .08 at the station, which is right on the legal limit. You could probably argue that's below a .08 if you get a good expert, but if the PAS device is like a .11 or a .10, the prosecutors are going to say, oh yeah, the PAS device is the accurate one because it's more close to the time of the driving. And defense attorneys do the same thing.
If the PAS device is a .08 and you get them back to the station, and they're a .11, the attorney will say rising blood alcohol. The PAS device is more accurate. The bottom line is, the PAS device can be discredited.
There's no question, so you hope that all they have is the PAS device in your DUI. Then you're in business. That's not going to be a good enough test. That's a winnable DUI case if they're only using the PAS device.
Where it gets a little bit tricky is if you go to places like Ventura county or even Orange County – in Ventura county, these guys are using the device out in the field, and that's how they're making their determination.
They must have a more sophisticated machine out there when they do their tests, but that gets a little bit confusing because they're not even taking the people back to the station in most cases to do the breath test.
Use Of An Expert
So, in that county, there are all kinds of issues with DUIs, and they don't negotiate them or Orange County. LA county is much more reasonable. If all you have is the PAS device, you can discredit it with an expert. That's the primary way to deny it because the expert will know how that preliminary screening device is, how it relates to DUIs in Los Angeles and its problems.
So, if you have a close case – and when I have close DUI cases in LA – I'll get an expert on board. We'll show them all the paperwork. I'll use my twenty-five years of experience.
We'll work together, and if it's close to the legal limit and there are problems with that PAS device, then we're going to attack it, and we're going to try to get that case dismissed. It depends on your blood alcohol level with the PAS device, what your blood alcohol level was with the blood or breath test, and then you discuss with your attorney – I always ask my clients, how much did you drink? What did you drink? How much did you eat?
You have to get into the details of it and see if whatever the PAS device result is – whether it even makes sense in the first place – based on your size, how much alcohol you consumed, how much food you consumed, how much time passed between the driving and using the breath test – and then if there's any differential between the blood for example, if you took blood and the PAS device, or if there's any differential between the PAS device and your blow at the station and how much time passed.
There are all sorts of issues that can be argued. You have to sit down with somebody like me, get the strategy together, and then make the right move so you can get the best result in your Los Angeles DUI case.
