Was it legal for the officer to demand Breathalyzer Test BEFORE I was arrested for DUI? By Daniel Smith
First of all you should know that under the implied consent law of California, you are required to take a Chemical Test if you are arrested for a DUI.
That means a blood test or a breath test or a breathalyzer as they commonly called.
What most people do not know is that there is a BIG difference between a Breathalyzer Chemical test and PAS or Passive Alcohol Sensor testing device that you may be asked by the officer to take at the scene.
THE PAS (Passive Alcohol Sensor)
Here is what is important to remember to tell the difference. The PAS device is generally a handheld device that the officer carries in his or her patrol car. There are no tubes connected to a breathalyzer that may be mounted in the patrol car.
So, if you are pulled over for suspicion of DUI in San Diego during this holiday season and asked to take a breathalyzer, you should note whether the device is handheld. If you are not sure, then simply ask the officer if the device is a PAS.
If it is a PAS, then you may “Respectfully Decline” to take the PAS test. And it is important to be polite. Police Officers are people too, and they received well in most cases, which can wear on anyone’s attitude.
CHEMICAL TESTS (mandatory under implied consent)
The Breathalyzer (Intoxilyzer 8000 or EC/IR)
The Breathalyzer you may take at the station or the jail, whether it is downtown or Las Colinas, if you are a woman is a chemical test. If you refuse to take a chemical test, be it blood or breathalyzer will result in a 12 month suspension of your license.
The Intoxilyzer 8000 or the IC/ER breathalyzers are generally used in San Diego County. They are larger machines about the size of an older electric typewriter.
Blood tests must be performed by a phlebotomist who is trained to draw blood. The actual test of the blood is actually a test of the increased amount of pressure that builds inside a test tube, if you will according to a formula developed by the now famous Widmark formula to determine BAC.
TO TAKE A PAS TEST OR NOT TO TAKE A PAS TEST, THAT IS THE QUESTION!
In a nutshell, your body is going to absorb most of the alcohol you have consumed within an hour. If you just drank an alcoholic drink prior to driving, you may still be absorbing alcohol.
Therefore, a PAS test may be in you favor if the reading is lower at the time you are stopped AND your BAC is higher at the station when you take the official test, you may have a “rising blood alcohol” defense. Which simply means you may have been under a .08% at the time of driving.
If you feel that you are “coming down” to a level under a .08%, or will be by the time you get to take the official chemical test, then you may not want to take the PAS test.
But if there is one thing we would like you to take away from this video is that you are not required to take a PAS test prior to arrest unless you are under 21 or currently on probation for a prior DUI.