The Preliminary Alcohol Screen Device (PAS) is a signifigant part of many San Diego DUI cases. When I have my first consultations, I ask the clients questions about the case. Most say yes, and at the scene the police never gave them a particular number. This device can help or hurt both the prosecution and defense depending on the results of this vary inconsistent device. It is a wild card in a San Diego DUI case that needs to be throughly examined. If you refused the test, it is a good thing, and it is information that your defense attorney can review.
If you take the PAS test, it is key to get information to see if it was working and properly administered. One way is to subpoena the Body/Dash Cam videos and review. Do not wait. You have 10 days from arrest to set the hearing. From there, subpoenas to get the videos should be served on the agencies. Call my office now to get the ball rolling at 858-751-4384.
What is the PAS?
The preliminary alcohol screening device, also known as the PAS, is a handheld device used to detect alcohol in the blood. This is one of the standard field sobriety tests (FSTs) that are used when someone is detained due to suspicion of driving under the influence of alcohol. Officers use this test, among others, to determine whether to arrest someone for driving under the influence. The officer will test the breath, and then wait two minutes before the device is ready to be used again. The officer will then test a second time to get another result.
How Does the PAS Device Work?
The PAS device works by allegedly detecting alcohol in the deep lung air, also known as the alveolar air, from the lungs. This means that when someone breathes into the PAS device, one of the issues is that it is important that they blow enough air to ensure that alveolar air is obtained. One issue arrises when the deep lung air is not taken, and the tests reflect a higher blood alcohol level due to not collecting the alveolar air. Another issue is with the test in general.
These tests are used to help the officer determine whether there is alcohol in the blood, and several issues can occur with this test. For example, if someone has GERD this may affect the reading by indicating that there is a higher blood alcohol concentration. This is because when someone has GERD, they can have acid reflux, which can give off an inaccurate reading because alcohol that may be in the stomach may come up into the mouth causing a falsely high reading. Additionally, the PAS test does not comply with the requirements of Title 17 of the California Code, and thus is not an accurate test. For someone to completely rely on this test is foolish. This is where a good DUI attorney can help to spot these potential issues.
Most PAS devices have what is called an automatic trap, where the device automatically determines how much air to retrieve from a person. The automatic trap will take one cubic centimeter of air from a person’s breath through the machine. However, some issues may arise when officers decide to use a manual trap rather than the automatic trap.
What is a Manual Trap?
When an officer uses the manual trap it means the officer manually decides how much air to take. While the automatic trap will take one cubic centimeter of air from a person, when an officer uses a manual trap that may not always be the case. An officer may take less air from a person when using the manual trap. This is important because it may cause a higher reading due to the possible lack of the alveolar air. Because the alveolar air is what will more accurately reflect the blood alcohol concentration, when an officer uses a manual trap they risk not getting enough air and thus not obtaining the alveolar air.
Can you fight the integrity of this test? Do I have to take the PAS test?
If you have not been arrested, the police can ask you to submit to a roadside breath test in order to gain evidence that they can use to make an arrest decision. That test is called a preliminary alcohol screening (PAS) test. If the test result is substantially less than 0.08, the police might let you go. If the test result is near or higher than 0.08, the police will use the result to establish probable cause to justify a DUI arrest.
California law requires the officer to advise you of your right to refuse a PAS test. Some officers are more conscientious about providing that information than others. Some officers make it sound as if the implied consent law applies to a PAS test. It does not.
Whenever an officer asks you to submit to a roadside test, your first question should be “Am I under arrest?” If the officer says you are not under arrest, you are free to refuse the PAS without fear that your refusal alone will result in the loss of driving privileges. If you or a loved one has been arrested for driving under the influence, it is important to be proactive on your case an hire an experienced DUI attorney who knows these issues and will look to see if you have them in your case. Call 858-751-4384.
Should You Submit To A PAS?
If an officer wants you to submit to a PAS, should you provide a breath sample? If you know you have consumed no alcohol at all, go ahead and do it. Just remember that the officer might arrest you anyway if he or she believes that you were driving under the influence of drugs. Passing the test is no guarantee that you will be allowed to drive away.
Also remember that even if you take the test, you will still be subject to the implied consent law if the officer arrests you. The fact that you took a PAS test does not mean that you have already satisfied the implied consent law since that law only applies to tests requested after
an arrest. If you take a PAS test but refuse a breath or blood test after an arrest, you will face a loss of driving privileges based on the refusal.
If you drank alcohol, taking a PAS test before your arrest will likely give the police evidence that can be used against you. Even if you do not feel drunk, your blood alcohol content (BAC) may be near or above 0.08. Since taking the test will rarely benefit you but will often give the police another reason to arrest you, it usually makes sense to refuse a PAS test if you have not been arrested. If you or a loved one has been arrested for driving under the influence, it is important to be proactive on your case an hire an experienced DUI attorney who knows these issues and will look to see if you have them in your case. Call 858-751-4384.
When You Should Submit To A PAS
Note that there are times when the right to refuse a PAS does not exist, even if you are not under arrest. Those include:
- You are under the age of 21.
- You are on probation and a condition of probation requires that you not drive after consuming any alcohol.
- You are on probation and a condition of probation requires you to submit to a PAS test whenever an officer requests one.
In all other circumstances, refusing the PAS test is almost always the right decision if you consumed any alcohol before you started driving. You might be arrested anyway (and asked to submit to an implied consent test), but you at least prevent the police from obtaining evidence of your BAC that is closer to your time of driving. That in itself might benefit you when you contest the charge.
It is important to obtain a DUI lawyer that understands all of these issues. If you or a loved one has been arrested for driving under the influence, it is important to be proactive on your case an hire an experienced DUI attorney who knows these issues and will look to see if you have them in your case. Call 858-751-4384.