Driver Appeals License Suspension Because Officer Failed to Advise That the PAS was Voluntary

Case Alert  
By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College  

Ruling 
Failure to give a statutory admonition prior to a preliminary alcohol screening (PAS) test is not grounds for evidence suppression (23612(i) V.C.)  

Case Citation 
Kazelka v. California Department of Motor Vehicles, 1DCA, March 27, 2025, #A163664  

Facts 
After a citizen’s report of erratic driving, a CHP officer in Lake County followed the defendant’s vehicle and made similar observations. The defendant showed symptoms of being under the influence of alcohol. The officer administered a preliminary alcohol screening (PAS) test, but did not give a required pre-test verbal admonition informing the defendant the test was voluntary (23612(i) V.C.). The defendant’s BAC was .11 on the PAS test and on a subsequent chemical test. 

The defendant challenged the admissibility of the PAS test that resulted in the suspension of his driver’s license on grounds that the officer failed to give the required verbal admonition. 

Held 

1DCA ruled the failure to give the statutory admonition did not impact the admissibility of the PAS evidence at a DMV administrative hearing.  

Though this case dealt with a DMV administrative hearing, the decision appears to be equally applicable to a motion in Superior Court. The court reiterated that despite what is written in a state statute, suppression of evidence can only take place if there is a constitutional violation. “The exclusion of relevant evidence...is barred by the California Constitution’s Right to Truth in Evidence provision, unless otherwise compelled by the federal Constitution.” Cal. Const., art. I, § 28, subd. (d). “The administration of field sobriety tests upon the lawful detention of a driver suspected of being under the influence, for the purpose of determining whether probable cause exists to arrest, is merely a reasonable investigation, not an unreasonable search or seizure in violation of the Fourth ....