California DMV’s Excessive BAC Hearing (aka APS) Hearing Manual explains how DMV attempts to admit into evidence the results of a San Diego hand-held breath test gadget or Preliminary Alcohol Screening (PAS) Test in cases involving minors or those drivers on California DUI court probation. The manual’s reference to PAS tests is set forth below in its entirety. The manual says nothing about using the PAS in over 21 cases, San Diego County DUI Law Center’s Attorney Rick Mueller notes; lawyers should object to any DMV attempt to do so.
“12.111 Preliminary Alcohol Screening Test
If a peace officer lawfully detains a person under 21 years of age who is driving a motor vehicle and the officer has reasonable cause to believe that the person is in violation of §23136 VC, the officer shall request the person take a preliminary alcohol screening test to determine the presence of alcohol. A preliminary alcohol screening test device (PAS) is an instrument designed and used to measure the presence of alcohol in a person based on a breath sample per §13388 VC.
It is unlawful for a person who is on probation for a violation of §23152 or §23153 VC to operate a motor vehicle at any time with a BAC of 0.01% or greater as measured by a PAS test or other chemical test. The testing is administered at the direction of a peace officer having reasonable cause to believe the person is driving a motor vehicle in violation of §23154(a) VC.
In Coniglio v. DMV, 1995 39 Cal.App.4th 666 the court found that Title 17 breath alcohol analysis standards did not apply to PAS devices and that, in general, the PAS test was a reliable way to enforce the zero tolerance law. However, the court also found that the department had to prove the reliability of a particular PAS device used in a particular test. The court cited People v. Adams, 1976 59 Cal.App.3d 559 “In general the foundational prerequisites for admissibility of testing results are that:
1. The particular apparatus utilized was in proper working order,
2. The test was properly administered, and
3. The operator was competent and qualified.”
The court concluded that the PAS test results must satisfy these requirements to be admissible to show a zero tolerance law violation. It is the DMV’s burden to show that the requirements are met.
12.112 PAS Procedure
When the issue of the reliability of the PAS evidence is raised in a hearing, the hearing officer must determine if foundational requirements have been satisfactorily met through testimony, a certified record with a declaration, and/or other evidence. The hearing officer may also wish to consider and make findings on other factors tending to support or diminish the reliability of the PAS test, such as alcohol from breath, driver’s admission, etc.
Peace officers and law enforcement agencies vary in their ability to meet the Coniglio standards. For example, a peace officer may be able to identify a particular brand or model of the PAS device used and satisfactorily meet other Coniglio requirements. In other cases, other witnesses or documents may be able to do so. In yet other cases, there will be insufficient evidence to do so.
Questioning in an actual hearing would not be limited to these suggestions, but would vary depending on the facts and circumstances of the particular case.
12.113 PAS Questions
The following is a list of questions hearing officers could ask the subpoenaed peace officers in order to attempt to establish the three Adams foundational requirements required by the Coniglio decision, when the issue of reliability of the PAS evidence is raised in zero tolerance and violation of DUI probation cases.
The testimony of the officer who administered the PAS test will not be necessary if the Chemical Test Certification statement on the front of the DS 367M is signed. The officer certifies that the breath sample results were obtained in the regular course of duty, the tests were administered in accordance with their training, and that they were qualified to use the PAS device. If the certification is not signed, the officer must be subpoenaed. Each Driver Safety Office, in preparing PAS and violation of DUI probation cases, will have to call the law enforcement agencies to determine who at that agency is responsible for, and can answer questions regarding the maintenance and calibration of that agency’s PAS devices. That person or persons will then need to be served a subpoena duces tecum.
The calibration officer will testify to the frequency and results of the accuracy checks, and any necessary calibration of the device. The Accuracy and Calibration logs can reveal that the device was returned to the manufacturer for maintenance.
THE PAS TEST
• “What training have you received on the operation of the preliminary alcohol screening device?” .
• “How long was the training?”
• “Who administered the training?”
• “How many PAS tests have you administered in your career as a peace officer?”
• “Were the PAS tests administered in the manner consistent with your training on the operation of the PAS device?”
• “Was the PAS an Evidentiary Preliminary Alcohol Screening (EPAS) device; if so, was it in the evidentiary mode?”
• “Please explain, not generalize, the steps you took to administer the test.” Have the officer describe in a step-by-step fashion the specific actions that occurred, e.g., inserting a new mouthpiece, pressing the button to air-blank the device, checking the LED display, interpreting the meaning of the LED display, checking the temperature, what instructions he gave the driver as to how to blow and for how long, what happened when the driver blew, what the LED display read during and after blowing, what buttons were pressed during or after blowing, etc.
• “Were the steps you took to administer the PAS test in this case consistent with your training on the operation of the device?”
• “Was there anything unusual or out of the ordinary in the administration of this test to (respondent name) compared to other PAS tests you have administered (or compared to how you were trained to administer the test)?”
QUESTIONS FOR THE PERSON RESPONSIBLE FOR MAINTAINING AND/OR CALIBRATING THE DEVICE
• “What is the manufacturer’s name and the model name or number of the PAS or Evidentiary Preliminary Alcohol Screening (EPAS) device used in this case?”
• If an EPAS was utilized; “Was the device on the acceptable manufacturer’s list per Title 17 CCR?”
• “Did the PAS device used in this case come with any official written instructions from the manufacturer concerning how to calibrate and maintain it? If so, do you follow those instructions in calibrating and maintaining the device(s)?”
• If there are no instructions from the manufacturer on how or when to calibrate the PAS device used in this case, “What is the source of your knowledge on how or when to calibrate the device?”
• “What calibration standards and tolerance levels do you employ in calibrating the PAS device? What is the source of those standards and tolerance levels?” OR, “Why do you believe those standards and tolerance levels are appropriate to ensure reliability of the test results?”
• “Please explain the steps you use to calibrate and maintain PAS devices for (name of law enforcement agency).”
• “What is your source of knowledge for calibrating and maintaining these PAS devices in the manner you have described?”
• “Are these the steps you employed to calibrate and maintain the PAS device used in this case?” •
• “Do you have any written records indicating how often the PAS device used in this case was calibrated,. what the results of calibration were, and when the device was last calibrated prior to the detention of (respondent’s name)?”
[California DMV APS Manual, Ch. 12, pages 12-52 – 12-53]