False PAS Readings: Everything You Need to Know in California
Did you know that a person can fail a breathalyzer test, also known as a Preliminary Alcohol Screening test (“PAS”) when they haven’t even been drinking alcohol? You may be surprised to learn that PAS tests are often inaccurate, and many factors can give false positives.
Why Is the Breath Test Result Such a Big Deal?
The breath test is a big deal because it can be the basis for arresting you and charging you with a DUI. After all, the test supposedly shows whether you were above the legal limit of .08%. It can then lead to further chemical testing at a police station, a night in jail, and automatic suspension of your driver’s license by the California Department of Motor Vehicles within a month.
Many people are improperly or unfairly charged with a DUI under California law. If this happens to you, you should immediately speak with a Southern California criminal defense attorney. Many drunk driving cases can be won, and a DUI defense attorney may successfully fight your breath testing result. Many attorneys, such as The Law Offices of Taylor and Taylor, even offer a free consultation.
If you do not protect your rights, you could end up dealing with a DUI conviction, DUI penalties, and DUI probation. DUI laws are not always applied fairly, and it is never a good idea to go through this process alone.
Are Breathalyzers Admissible in Court in California?
Yes. All breathalyzer tests utilized by law enforcement in California can be admitted as evidence in court in California. However, the type of test or device may not carry the same weight as another. An experienced DUI lawyer will be able to help explain these nuances to you, and may also be able to prevent the results of a field sobriety test from being allowed as evidence in your case.
What Is the Difference Between a PAS and Other Breath Tests?
There are two breath tests used in California. The first is a PAS breath test, usually conducted during a traffic stop before a DUI arrest. Police officers have this test at their disposal to aid them in a DUI investigation. You can refuse this breathalyzer test in California unless you are under 21 or on probation for drunk driving.
After a DUI arrest, a second type of breath testing may be administered. This test uses equipment that follows requirements outlined in Title 17 of the California Code of Regulations.
A title 17 breath test must collect air from deep within the lung called “alveolar air”. Before giving a driver this test, a police officer is supposed to continuously observe them for 15 minutes and ensure they do not ingest food or drink, smoke anything, burp, or throw up. Any of these events can affect test results. You cannot refuse this test, but you are allowed to request a blood test or urine test instead, if available.
District attorneys always prefer to have a title 17 breath test taken over a PAS test because they are supposedly conducted in more controlled settings and with better equipment. Thus, they are viewed as a more reliable source of evidence. However, they are not perfect, especially if law enforcement or other personnel are not authorized to give them or don’t follow protocol.
PAS tests can be introduced as evidence at trial but are subject to more lines of attack and questioning from a DUI defense attorney.
Will Benzyl Alcohol Show Up on a Breathalyzer?
Yes, benzyl alcohol can show up on a breath test. Benzyl alcohol is found in Anbesol, an ingredient in many oral gels used to treat canker sores and toothaches. If a person has recently applied an oral gel and takes a breath test, they can test positive on breath test machines. They may “blow” a higher BAC level than would have otherwise been the case had they not had this in their system.
How to Discredit a PAS Breath Test in a California DUI Case
A PAS breath test can be discredited in many ways. In addition to the false positives caused by oral gels, other common medications and personal hygiene products can also cause false positives.
Medications that treat asthma, COPD, bronchitis, and emphysema can also affect breath test results. If a person is sick and has been taking cough drops or cold medications, they may contain alcohol and be in your breath sample when a test is administered. Residual alcohol, known as “mouth alcohol” from mouthwashes and breath sprays, can also affect breath tests.
Breath test machines are intended to measure deep lung air. Alcohol from alcoholic beverages, alcohol vapor or “mouth alcohol” can all cross between the bloodstream and lungs fairly easily. When a person takes a breath test, mouth alcohol can mix with exhaled air and a device can interpret this as a blood alcohol concentration reading. Breath test machines cannot necessarily tell the difference between residual alcohol in your breath versus deep lung air.
A skilled Orange County DUI attorney can show that these factors could have caused a false positive and your preliminary alcohol screening test to show a blood alcohol concentration of 0.08% as opposed to you being above the legal limit.
If I Really Was Drinking, Can I Still Fight the Breath Test?
Yes, you may be able to fight the results even if you were drinking. Many potential defenses can prevent a breath test from being considered in your case. If a prosecutor does not have evidence beyond a preliminary alcohol screening test or breath test result, they may have to drop their case or negotiate the charges down.
From issues that may exist with whether police officers had probable cause to arrest you, whether field sobriety tests were administered correctly, or whether there were other factors that could have created false positives, you may be able to fight test results. This can lead DUI charges against you being dropped, dismissed, or reduced.
What Happens if I Am Convicted of a DUI?
The consequences for DUI conviction under California law largely depend on whether you are convicted as a first-time or repeat offender. There can be fees and costs in addition to DMV penalties which may lead to the suspension of your driver’s license.
A first-offense DUI in California can carry three years of informal probation, fines, and penalties totaling several thousand dollars. You will also have to complete a first offender alcohol program which can cost another few hundred dollars. In many cases, drivers will also have to do community service or participate in a victim impact panel.
Most people will not be sentenced to jail time unless certain aggravating factors are present in their case. These can include a minor child in the car or going 25 miles an hour or more above the speed limit on a roadway. In addition, your county may require you to install a handheld breathalyzer in your car to prevent it from starting if it detects you have been drinking.
For repeat offenders, the consequences become more serious. For a second-time offender, there is a minimum jail time of 96 hours. Additionally, prosecutors will usually seek more time, up to a year. You can lose your license for two years.
What Are the Best Strategies for Attacking Breath Test Results?
Many strategies may be available to you. However, the best place to start is usually at the beginning. Did the officer have a legal justification for detaining you? In other words, did they have probable cause to pull you over and give you a breath test?
Another strategy revolves around whether a testing device was reliable and in proper working order. You can also question whether a test was adequately administered or if the test correctly determined your blood alcohol content. Chemical test results can also be challenged if specific procedures are not followed, contamination or improper handling is suspected.
If you suffer or were suffering from any metabolic or medical conditions at the time of your arrest, you may have a mouth alcohol or medical defense. Prescription drug content may make your breath sample an unreliable indicator of a person’s blood alcohol concentration.
Should I Contact a Lawyer to Help Me?
Yes, absolutely. There are many steps to the process that you may be unable to adequately handle on your own. For example, after a DUI arrest, you must worry about a potential criminal case and an administrative case with the California Department of Motor Vehicles regarding the suspension of your license.
A SoCal DUI Lawyer can help you navigate both of these proceedings. Attorneys are also familiar with tactics used by local district attorneys, California law, minimum and maximum sentencing requirements, and the likelihood of being able to reduce your charges versus getting them dismissed.
Finally, a DUI conviction can seriously impact your livelihood if you have any professional license, such as a medical, dental, pharmacy, or pilot license. An attorney can help you determine the best defense strategy with the most negligible impact on your personal and professional life.
Do Not Blow in PAS Breath Test if Stopped for a SoCal DUI
You may refuse to take a preliminary alcohol screening pass in California unless you are under 21 or on probation for drunk driving. If you are on probation and will not take the test, your probation may be revoked, and you may serve jail time. If you are below age 21, you can lose your driver’s license if you refuse to test.
The main reason for a preliminary alcohol screening is so that the officer who pulls you over can establish probable cause to arrest you for DUI. An officer may claim you are required to take it or that it could help you in your case. This is only true if you are confident that you are under the legal limit of 0.08. But, as explained above, you can fail a test even if you have not been drinking alcohol.
Get in Touch with an Experienced DUI Attorney Today
If you or someone you care about is dealing with a DUI, you should speak with our experienced DUI defense attorney today. You may be able to defend your case and avoid DUI charges.
Our defense attorneys have decades of experience handling California DUI matters and will aggressively fight to help you get the best result possible. Contact us today for a free consultation.
CA DUI Frequently Asked Questions
1. When Is a Breath Test Given in a DUI Case?
A breath test is usually given after a police officer has observed a driver acting in a way that may lead them to suspect they have ingested alcoholic beverages before driving. This can occur at a DUI checkpoint or if someone has been pulled over for another reason. It may also be used as a further investigative tool to establish probable cause.
2. Can a Driver Refuse to Take a DUI Breath Test?
A driver can refuse a DUI breath test under certain circumstances. However, there can be harsh consequences for your refusal to take a test. California vehicle code section 13353penalizes anyone who does not submit to a breath, blood test, or chemical tests as follows:
- Suspend driving privileges for one year;
- Revoke a person’s driving privileges for several years if the person has had prior violations in the past 10 years;
- Mandatory jail time in some scenarios; and
- Increased time in DUI school.
A person’s individual circumstances will impact how harsh the penalties may be.
3. Is It Better to Choose a DUI Breath Test or a Blood Test?
Having to take either test is not ideal. However, blood tests are believed to be more accurate than breath tests by prosecutors and a more robust source of evidence regarding BAC levels. Because of this, they are often less willing to negotiate with DUI lawyers on charges involving a blood test. If you have a choice, the breath test may be a better option because it is easier to exclude in court.
4. How Do Title 17 Regulations Apply to DUI Breath Tests?
Title 17 of the California Code of Regulations has very specific rules about how police departments and law enforcement must conduct blood tests, breath tests, and chemical tests. If the police do not comply with Title 17, the DA may not be able to use test results to support their case to charge and convict a person.
In the case of breath tests, every test must follow specific procedures. Many law enforcement officers routinely fail to follow these procedures:
- Two separate breath samples must be used, each resulting in determinations of breath alcohol concentrations that do not differ by more than 0.02 grams per 210 liters of breath.
- The breath test devices must be regularly maintained and checked for accuracy following specific procedures. This must occur every 10 days after 150 people have been tested, whichever comes sooner.
- The person operating the device must have had particular training.
There are also precise procedures that must be followed for blood collection and retention as well as urine collection and retention.
5. What Is the Science Behind Testing Breath for BAC?
The “science” behind this process is based on a ratio calculated due to a chemical reaction detected and interpreted by a breath test. Alcohol vapor in a person’s breath sample reacts with an orange solution known as potassium dichromate. If alcohol is present, this solution is supposed to become green, which produces an electrical current. A breathalyzer is supposed to convert this current into a numerical value representing a person’s blood alcohol levels (BAC).
Many professionals disagree regarding the strength or reliability of this supposedly “scientific” testing methodology.
6. Can Medical Conditions Produce False Readings?
Yes, many medical conditions such as gastrointestinal reflux disease, metabolic conditions caused by people following ketogenic diets, medications from dental issues, diabetes, asthma inhalers, and more can produce false readings.
7. Can “Residual Mouth Alcohol” Trick a Breathalyzer?
Yes. Residual mouth alcohol is a prevalent cause of false positive results. It can stay in a person’s mouth for roughly 15-20 minutes before dissipating. If the person exhales soon after drinking, a breathalyzer can pick up some of this leftover mouth alcohol. This means that the sample relied upon can contain an amount of alcohol attributable to mouth alcohol and cause a test result higher than a person’s actual BAC.
8. What Other Factors Can Contribute to Falsely High Readings?
In addition to medical conditions and mouth alcohol, a person’s environment can lead to false readings. For example, a person who is regularly around acetone, such as someone who works in a paint store or construction, may have acetone in their system. Acetone can inflate readings.
If equipment has been used repeatedly and without proper cleaning, alcohol contamination from a prior tester may contribute to a falsely high reading.
Talk To A DUI Defense Attorney
You may have defenses to felony charges or may be able to get them reduced to a misdemeanor or “wet reckless” charges. An experienced attorney can evaluate your case and discuss your options with you. A lawyer serving DUI clients will often offer a free no obligation consultation and everything discussed is protected by the attorney client relationship.
Schedule a free consultation with one of our expert California DUI attorneys here.
Sources:
https://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=I9FA6E1105A2011EC8227000D3A7C4BC3&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)
https://govt.westlaw.com/calregs/Document/I9E9D39435A2011EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
https://www.dmv.ca.gov/portal/handbook/california-driver-handbook/alcohol-and-drugs/#:~:text=It%20is%20illegal%20for%20any,is%20on%20a%20DUI%20probation.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=13353&lawCode=VEH
https://govt.westlaw.com/calregs/Document/I9FC6C5235A2011EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
https://govt.westlaw.com/calregs/Document/I9F4B2C835A2011EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
https://govt.westlaw.com/calregs/Document/I9F5984635A2011EC8227000D3A7C4BC3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
https://www.medicalnewstoday.com/articles/breathalyzer-test#:~:text=The%20alcohol%20vapor%20in%20a,value%20to%20determine%20the%20BAC.
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