If police ask you to blow into a small hand-held
gadget, what is this? What does it mean?
How can a San Diego DUI Attorney help?
San Diego County DUI police enforcement agencies regularly
use a roadside preliminary alcohol screening test (PAS)
- the Intoximeters Inc. Alco-Sensor IV. http://www.intox.com/products/handheld.asp
San Diego California drunk driving attorneys quickly point
to the lack of any mouth-alcohol detector or slope detector
in this arguably inaccurate hand-held gadget.
San Diego DUI lawyers are aware of many positive false positives
which register upon using this unreliable gadget. For example,
a person with no alcohol in the body can eat white bread
(e.g. Wonder bread) and usually get a false positive "breath
level" reading.
According to the manufacturer, the Alco-Sensor IV /w Memory
is an automated handheld breath alcohol gadget. It claims
to offer a simple, accurate and economical method of determining
a subject’s preliminary breath level and electronically
stores the test data. (size : 5 1/2" x 3 1/2"
& weight : 2.2lbs / 11oz). However, the gadget makes
numerous assumptions and incorrectly states it can determine
one's breath/blood level. The gadget attempts to measure
breath but does not determine one's "blood" level.
San Diego DUI police often represent or imply a San Diego
DUI suspect must blow into the machine but California law
clearly states this hand-held gadget is merely a voluntary
"field sobriety test and may be used by an officer
as a further investigative tool." (California Vehicle
Code Section 23612(h), http://www.sandiegodrunkdrivingattorney.net/consciousness-of-guilt.html
)
A San Diego DUI officer is required to advise a San Diego
DUI suspect as required by California Vehicle Code section
23612(i):
(i) If the officer decides to use a preliminary alcohol
screening
test, the officer shall advise the person that he or she
is
requesting that person to take a preliminary alcohol screening
test
to assist the officer in determining if that person is under
the
influence of alcohol or drugs, or a combination of alcohol
and drugs.
The person's obligation to submit to a blood, breath, or
urine
test, as required by this section, for the purpose of determining
the
alcohol or drug content of that person's blood, is not satisfied
by
the person submitting to a preliminary alcohol screening
test. The
officer shall advise the person of that fact and of the
person's
right to refuse to take the preliminary alcohol screening
test.
[California Government Code section 1222: Every wilful omission
to perform any duty enjoined by law upon any public officer,
or person holding any public trust or employment, where
no special provision is made for the punishment of such
delinquency, is punishable as a misdemeanor.]
While this roadside hand-held gadget is not the (over 21)
required breath or blood test under California's implied
consent law (California Vehicle Code section 23612), if
you are under 21, you must blow into this gadget. (California
Vehicle Code sections 13388 and 23136). Other rules apply
for under 21. San Diego DUI criminal defense lawyer defenses
are still available.
This manufacturer requires before this PAS test can be used
as evidence, there must first be a 15 to 20 minute continuous
observation period by the officer before having a San Diego
DUI suspect blow in the hand-held gadget: "...the subject
must be kept under observation for 15 to 20 minutes prior
to testing to ensure complete dissipation of any residual
alcohol that may have been in the subject's oral or nasal
cavity. [PAS Manual, p.5]
A deep lung breath must be submitted and analyzed to get
a reading that accurately reflects the subject's breath
measurement.
The manufacturer goes on: "Recent consumption of an
alcoholic beverage, a dose of medication containing alcohol
or regurgitation could introduce 'mouth alcohol' to a breath
sample and cause an exaggerated reading. A 15-20 minute
deprivation period prior to testing will ensure 'mouth alcohol'
has not influenced the breath alcohol reading because mouth
alcohol dissipates quickly. (Refer to your rules and regulations
governing a required deprivation period prior testing.)"
[PAS Manual, p. 4]
The California Department of Health Services have breath
testing regulations.
Here is a governing California Code of Regulations, Title
17, section 1219.3 [Breath Collection]:
"A breath sample shall be expired breath which is essentially
alveolar in composition. The quantity of the breath sample
shall be established by direct volumetric measurement. The
breath sample shall be collected only after the subject
has been under continuous observation for at least fifteen
minutes prior to collection of the breath sample, during
which time the subject must not have ingested alcoholic
beverages or other fluids, regurgitated, vomited, eaten,
or smoked."
The onus is on the officer to ensure the minimum 15 minute
continuous observation of the subject prior to blowing.
The subject need not show these things did in fact happen;
it is the mere possibility of such a contaminating act.
There is no mouth alcohol detector on this gadget - that
is why the manufacturer requires a 15 to 20 minute observation
period before attempting to use the gadget. If one of the
above proscribed things happen, the machine will not be
able to differentiate between one of these false positives
and the deep lung air which was supposed to be measured.
In evaluating any California test results, one must consider
whether or not the person administering the test or agency
maintaining the testing device followed the regulations
of the California Department of Health Services.
The foundational prerequisites for a breath test are: (1)
the particular apparatus utilized was in proper working
order, (2) the test used was properly administered, and
(3) the operator was competent and qualified. [People v.
Adams (1976) 59 Cal. App.3d 559, Coniglio v. DMV (1995)
39 Cal.App.4th 666]
Obviously, in order to properly administer the test, San
Diego County DUI police have to follow the manufacturer's/regulatory
guidelines and instructions, including the 15-20 minute
continuous observation period requirement.
California Department of Health Services' Standards of Procedure,
California Code of Regulations, Title 17, section 1221.4(a)(2)(B)
and law enforcement require proper periodic determination
of accuracy - every 10 days or 150 subjects, whichever comes
sooner. These PAS devices must be so checked for accuracy
and proper working order.
Among the many other possible problems with this gadget
is the test's margin of error.
In conclusion, for a number of reasons, some of which are
discussed above, it is often not difficult for a San Diego
DUI attorney to show some lack of reliability or inaccuracy
of the PAS test results.
For related information on the lack of reliability/accuracy
of this gadget & breath testing visit:
Blood
Alcohol Content
Retrograde
Extrapolation
Assumptions
of BAC
Breath
Temperature
Reliabilility
of Breath Tests
Breath
Test Inquiries
Breath
Testing Technologies
2010© San Diego County DUI Law Center
- All Rights Reserved
