A PAS device is a portable breath-testing machine. As an Orange County DUI PAS breath test attorney, I know that courts have ruled that the PAS test is not a determiner of blood alcohol content but can be used as an “investigative tool” to establish probable cause for a DUI. In CA, the vast majority of police use the Alco-Sensor IV. What makes this device so popular is that the results can be downloaded through the police car’s computer.
Technically the police are supposed to advise the drivers that they don’t have to take the test, but this advice is rarely given. However, if the driver is arrested on suspicion of driving under the influence of alcohol or drugs, the driver no longer has the legal right to decline a chemical test under the "implied consent law."
It is important to note that the prosecution has to show that the police department followed the rules set out under California law. These rules govern how the officer is trained in the use of the PAS device and the way the equipment is maintained. The prosecution must show that the equipment was properly maintained and calibrated, that the test was correctly given and that the operator (the police officer) was qualified to give the test (i.e., he or she had the proper training in the use of the devise).
A qualified DUI PAS breath test attorney in Orange County will look for deficiencies in the use of the PAS device. For example, evidence that sufficient volume of breath was given during those tests, that the maintenance and calibration logs of the device used are within standards, and that the officer who administered the test was properly trained. If the any of this evidence indicates a legal deficiency, an alert DUI defense attorney will challenge the PAS test results as admissible evidence.
Orange County DUI PAS breath test lawyer William Weinberg always reviews the entire facts of the DUI case, including the all-important PAS evidence. Mr. Weinberg has challenged the results of PAS tests in court and has succeeded in having these results excluded as evidence. Without the PAS evidence, the prosecution's case is considerably weakened, if not altogether undone. After all, the PAS is the only objective evidence the prosecution has to carry the charge.
PAS RefusalsIn cases where the driver refuses to take a chemical test after being lawfully arrested, the DMV has imposed a one-year mandatory suspension of driving privilege. This cannot be shortened n any way. In order for the DMV to find that someone refused, they have to show that the police officer had reasonable cause to believe that 1) the person was under the influence of drugs or alcohol, 2) the person was arrested or detained, 3) the person was advised that the refusal would be a suspension and 4) the person failed to take chemical test after being requested to do so. Please note that you don’t have to say you are refusing, silence is sufficient to constitute a refusal. Also, hedging, stumbling about, and dragging out the process of consenting constitute a refusal. The bottom line is: if you have been lawfully arrested for driving under the influence and a police officer asks you to submit to a chemical test (blood or breath) and you don’t do it, you will get arrested and charged with a refusal, which carries additional and mandatory penalties. A DUI PAS breath test lawyer in Orange County can help you fight this type of charge.
It is very important to note that a PAS test is not the same as a chemical test for refusals. If you are not under arrest and the officer asks you take a PAS test, as a preliminary field sobriety test, you will have no penalty if you refuse. For additional information, please see the summary of the "implied consent law."