IS THE ROADSIDE PORTABLE BREATH TEST MANDATORY?

Dec 10, 2014 @ 04:35 PM — by Myles L. Berman

Many people are under the mistaken belief that the roadside breath test is 100% optional.  I should state that it is 100% optional for some people.  For others, however, it is mandatory and failure to provide a sample is deemed a chemical test refusal.  For purposed of brevity, I will divide this discussion into two types of roadside breath tests – the preliminary alcohol screening test (“PAS”) and the evidential breath test.

The PAS test is primarily used as an investigative tool in order determine whether there is probable cause to arrest an individual for driving under the influence.  The PAS device provides a numerical value reflecting what it has calculated to be the individual’s blood alcohol content (“BAC”). The PAS is typically requested after an individual completes the standard field sobriety tests (“FST”).  Or, if an individual declines the FSTs, the PAS is then requested. 

The general rule is that anyone 21 or older who has never been arrested or convicted of a DUI in California can refuse to submit to a PAS.  As the PAS is simply an investigative tool, it is not mandatory for individuals in the above referenced category.  It is mandatory, however, for individuals under the age of 21.  If a person under 21 is detained for a DUI and refuses to submit to a PAS, that individual can be prosecuted as a refusal.  Additionally, anyone who is on probation for DUI is required to submit to the PAS.  A term of probation for an individual convicted of DUI is that such person must submit to a chemical test if required by a peace officer.  Failure to submit is a violation of the terms of the court probation as well as a separate reason to suspend an individual’s license as a DUI refusal.

Now, here’s where things can get a little tricky.  The police now have a handheld test that looks identical to the PAS however it is used for evidential purposes.  This means that this roadside handheld breath test is not being used to determine probable cause, it is used to determine the person’s BAC. An individual does have the right to choose which evidential test – breath or blood – that that individual wants to take so long as the chosen test is available.  So, if a person rejects a roadside evidential breath test and an evidential blood test is unavailable, that person may be deemed to be a refusal.

So, as you can see there is no bright line rule regarding submitting to a roadside breath test. 

Well, I hope you found this week’s blog entry informative.  Stay tuned for more fun DUI facts in future blogs.

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