DUI Arrest: Is The Voluntary Breath Test Admissible?

A typical
DUI investigation begins with a traffic stop, an accident investigation, or a DUI checkpoint encounter. Once the police officer detects
alcohol on the driver or has reason to believe that the driver has used drugs,
the officer will ask a list of preprinted questions and ask the driver to
perform field sobriety tests. Then, at the end of the investigation, the
officer will usually ask the driver to take a “preliminary alcohol screening”
test or PAS test as it is sometimes called. This “voluntary” breath test is considered to be another field
sobriety test to assist the officer in determining probable cause to arrest the
driver who is suspected of DUI. Then, based on all of the officer’s
observations, the officer will make a decision whether to make a DUI arrest or
not.

Once the
driver is arrested for DUI, they are told that they must choose a breath test
or a blood test to determine their blood alcohol level. The officer usually
tells the driver that they don’t have the right to consult with their Orange County DUI Lawyer before they make their decision. This post-arrest
blood or breath test is considered the “evidentiary” test, as it is the primary
evidence of a driver’s blood-alcohol level. There is no doubt that the
evidentiary test result is admissible against the driver at trial. But what
about the voluntary PAS test? Is this admissible?

Just a few
years ago the PAS test was almost always conducted with a breath machine that
was not certified for an evidential test. Therefore, the actual numerical
reading obtained on the machine was not admissible in court. Any time the DA
tried to introduce the result, the driver’s Orange County DUI Attorney would successfully object and all the jury could not
hear the actual reading of the machine, only that alcohol was detected. Now, in
Orange County, nearly all of the police agencies use the Alcosensor IV, which
IS certified for evidential testing. Therefore, the actual numerical reading on
these machines is allowed into evidence in most cases.

In the case
of People
v. Bury (1996) 50 Cal.App.4^th 1873, the court of appeal held
that the results of a PAS test on an approved machine, such as the Alcosensor
IV, is admissible as long as the foundational requirements are met. The
foundational requirements include: 1) that the test was properly administered;
2) that the breath-testing machine was in proper working order; and 3) that the
operator was competent and qualified. Thus, in a DUI trial, the defendant’s DUI defense Lawyer in Orange County should object when the DA attempts
to introduce breath-alcohol readings on a PAS test. It is the DA’s burden to
lay the foundational requirements BEFORE the result can be disclosed to the jury.

Probably the
most successful objection is on the first prong of the foundational
requirements—that the test was properly administered. It is common for the
arresting officer to improperly administer the PAS breath test by NOT observing
the driver for fifteen minutes before taking the breath test. This observation
period is necessary to make sure the driver doesn’t burp or regurgitate.
Burping can reintroduce alcohol from the driver’s stomach to the driver’s
mouth, thus compromising the test and perhaps giving a false high reading.
Thus, if the officer didn’t conduct this fifteen minute observation period
during the DUI investigation, the PAS result should be suppressed and withheld
from the jury in the DUI case.

If you have
questions about DUI law, call The Law
Offices of EJ Stopyro at (949)
559-5500 for a confidential and free consultation with an experienced DUI
defense attorney. You can also go to our website at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.