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Can You Refuse a PAS Breath Test?

Posted by Dmitry Gorin | Jun 24, 2024

Let's review whether you can refuse a hand-held preliminary alcohol screening (PAS) breath test before you are arrested for driving under the influence (DUI) in California.

Suppose you've been pulled over on suspicion of driving under the influence (DUI) by law enforcement in California. In that case, the officer might ask you to take a Preliminary Alcohol Screening (PAS) breath test.

Can You Refuse a PAS Breath Test in California?
There is no penalty for refusing to take a preliminary alcohol screening (PAS) breath test.

In many cases, the officer may speak with authority, making you feel you must comply. In reality, adult drivers have the right to decline any form of blood alcohol testing unless they have been officially arrested.

In other words, after you are pulled over but before you are arrested, police often ask you to take a hand-held preliminary alcohol screening (PAS) breath test. You should know that there is no penalty for refusing to take a PAS breath test unless you are under 21 or on probation for a prior DUI conviction.

However, police officers will not typically tell you it's your choice. The PAS test is merely a field sobriety test (FST), such as using your finger to touch your nose or walking a straight line. It is another tool to help police decide whether to arrest you.

As noted, as long as you are at least 21 years old and not on DUI probation, refusal to take a PAS test cannot be admitted at trial as evidence of guilt. However, if you agree to a PAS test, the results can be used to help convict you of a DUI.

Therefore, most lawyers would never recommend agreeing to a preliminary breath test unless you are under 21 or on DUI probation.

In some counties, such as Ventura and Orange County, police use the Evidential Portable Alcohol System (EPAS) for post-arrest breath tests, which can be connected online. There are both pros and cons to taking a PAS test, and understanding your rights in this situation is crucial to making an informed decision.

What is the PAS Breath Test?

The PAS breath test is a tool used by law enforcement to measure a driver's blood alcohol content (BAC) at the roadside. It is typically administered using a handheld device and is part of the field sobriety tests conducted during a DUI investigation.

The PAS test is distinct from the evidential breath test (EBT) administered after an arrest at a police station. Because it is sometimes inaccurate, it is not always admissible as evidence in a trial. However, it can be used as evidence of probable cause leading to your arrest.

In California, the PAS breath test is considered a preliminary screening tool. Under California Vehicle Code 23612, drivers who are not yet arrested have different rights than those who are already under arrest.

What is a Refusal and Implied Consent?

You have the right to refuse the PAS breath test before an arrest. However, California's "implied consent" law requires drivers to submit to chemical testing (breath, blood, or urine) to determine BAC levels, which applies only after a lawful arrest.

Therefore, the PAS breath test, conducted before an arrest, does not fall under this mandatory compliance. There are, however, two notable exceptions in which drivers are legally required to submit to a PAC breath test when requested by police:

  1. Under 21 Drivers: California's "Zero Tolerance" law mandates that any driver under 21 who is pulled over on suspicion of DUI must submit to a PAS test. Refusal can result in an automatic suspension of their driver's license.
  2. Probationary Drivers: Drivers on probation for prior DUI convictions must submit to PAS tests when an officer asks. Refusing to take the test can lead to probation violation charges and additional penalties.

What are the Reasons to Decline the PAS Test?

Remember that the PAS breath test is typically not used as direct evidence in court if you are charged. In many cases, it is inadmissible entirely because too many variables could lead to inaccurate results. Instead, the PAS is used to establish probable cause for your arrest. For this reason, there may be situations in which it's in your best interests to decline to take the test politely:

  • Chance of False Positive: If you have decidedly not been drinking, you may assume taking the PAS will instantly clear you of suspicion-and sometimes it will. However, other circumstances can lead to false positives, which could lead to your arrest.
  • Inaccurate Results: PAS breath tests have a margin of error of about 15 percent when measuring blood alcohol content (BAC). While other chemical testing will occur if you're arrested, an inaccurate reading roadside could lead to an unnecessary arrest if you're below the legal limit.
  • Focus on Field Sobriety Tests: Without the PAS results, the officer must rely more heavily on field sobriety tests and other observational evidence, which can sometimes be more subjective and contestable in court.

What are the Consequences of Refusal?

Barring the two exceptions above, you have the legal right to refuse a PAS test. However, there are potential consequences to consider:

  • Suspicion and Arrest: Refusing the PAS test might make the officer more suspicious of DUI. While law enforcement can't legally arrest you for not taking the test, they can arrest you if there is probable cause suggesting you are under the influence. Refusing a PAS test may lead the officer to believe you are attempting to hide intoxication, possibly resulting in your arrest based on other observed behaviors or evidence. Once arrested, you must take a chemical test under the implied consent law.
  • Field Sobriety Tests: Even if you refuse the PAS test, officers may still conduct other field sobriety tests (FSTs) to establish probable cause for an arrest. Failing these tests can lead to the same outcome as failing a PAS test.
  • Use in Court: If you are eventually arrested and charged, your refusal to take the PAC breath test could be used against you in court as evidence of consciousness of guilt, impacting the outcome of your case.

If you determine it's advantageous to decline a PAS breath test during a traffic stop, do not be provocative with the officer, as this could lead to other charges and complications.

Instead, calmly and politely state that you assert your right to refuse a PAS breath test and desire to consult your attorney before submitting to one. If the officer still suspects DUI, this action will prompt the officer to seek other means of establishing probable cause. Contact our law firm for more information. Eisner Gorin LLP is in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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