Top 2 PAS Test Defenses
For motorists under 21 and folks on DUI probation, the law makes it illegal to drive with a blood alcohol concentration of .01 percent or greater. It also allows law enforcement to use the less-reliable preliminary alcohol screening (PAS) test instead of an evidential chemical breath or blood test.
There are two defenses that are particular to the PAS device used in these cases: one procedural and one substantive. The procedural defense involves the foundation that must be laid for the PAS results to be used in evidence. The substantive defense is based on the margin of error of the PAS device.
These PAS defenses are among the most successful at the Law Office of Rodney Gould.
PAS Test Defense #1
No Adams Foundation For PAS Test
Because the PAS test is not subject to the rigorous regulation scheme in Title 17, it does not carry the presumption of reliability that goes with evidential chemical testing. Accordingly, DMV must prove that the test is reliable before relying on it to suspend your license. Courts call this showing of reliability the foundation for admitting the PAS test into evidence.
Breath test foundations are governed by the three-part standard announced in the case of People v. Adams (1976) 59 Cal.App.3d 559 and are known by shorthand as “Adams foundations.” DMV can establish an Adams foundation for a PAS test by showing (1) that the officer was competent and qualified to administer the PAS test, (2) that the PAS device was in proper working order at the time of the test, and (3) that the officer administered the test properly. Only by establishing all three of these foundational elements can DMV rely on the PAS test to suspend a license.
This defense is by far the most common for hearings involving a PAS test because, properly done, the foundation requires DMV to call as witnesses both the arresting officer and the PAS calibration officer. Rarely will DMV call both of them to the stand, and that results in an inadequate foundation under People v. Adams.
PAS Test Defense No. 2
.01 Percent Reading Not Illegal
This is the holding of the unpublished case of Nazerian v. DMV (2d Dist. 2005) 2005 WL 1576246. If an expert testifies to the margin of error of the PAS device (usually at least plus or minus .01 percent), then a reading of .01 percent could be as low as zero, which, of course, would not violate the law. DMV has the burden of proving that your BAC was .01 percent or greater — not that it might have been .01 percent or greater. Thus, with the proper expert testimony, the PAS reading will have to be at least .02 percent to result in a suspension.
You will want to review the maintenance and calibration records for the PAS device used in your case, as they may well show the machine reading above the known standard. If so, have an expert testify at the hearing that the margin of error renders a reading of .01 percent statistically meaningless and demand a set aside of the suspension.