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 Amendment.”  

Notes 

A PAS test is not admissible evidence at trial; it only provides one basis for probable cause to arrest. If the PAS test is declined, a DUI arrest can still be made upon observations and investigation based on an officer’s experience and training. After arrest, a chemical test is mandated by law and refusal is consciousness of guilt (600 E.C.) 

Officers are trained in the Basic Law Enforcement Course to give a pre-test admonition before administering a PAS test (P.O.S.T. Basic Course Workbook – Learning Domain 28, Driving Under the Influence, Section 5-3): 

“If the officer decides to use a PAS test, the officer shall advise the person that: They are requesting that person to take a voluntary 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 officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.” 

Officers are encouraged to follow their department policy in this area.  

It is noted that after a citizen report of erratic driving, the officer in this case followed the defendant’s vehicle and observed similar behavior. Following a vehicle after a citizen report of DUI (“Report DUI” signs are prominently posted on our California roadways) to observe a Vehicle Code violation or other driving consistent with DUI, is not required to make a detention. As long as your dispatcher communicates to you the nature of the driving, vehicle description and direction of travel, you are good to go with a contemporaneous stop.  

Examples 

After an anonymous 911 cellphone call reporting reckless driving, a CHP officer pulled over a Ford truck on Highway 1 in Mendocino County. The caller reported the truck “had run her off the road,” provided a full vehicle description including license plate number and gave a mile marker and direction of vehicle travel. The officer followed the truck for five minutes while awaiting backup but viewed no illegal or unusual driving activity. After a stop, officers detected the overwhelming smell of marijuana emanating from the truck bed. They searched and found four large bags containing 30 pounds of marijuana. A court ruled the call included an eyewitness report of the incident, location and complete vehicle description. Running another car off the road suggests impairment that is characteristic of DUI. The officer’s failure to observe any additional suspicious driving did not dispel reasonable suspicion to detain (Navarette v. California (2014) 562 U.S. 393). 

At 1:43 a.m., an anonymous call to the CHP in Kern County reported “an ’80s model blue van... heading northbound on Highway 99 north of Bakersfield at about Airport Drive” and that the vehicle was “weaving all over the roadway.” Two to three minutes later, an officer observed a blue van traveling northbound and pulled behind it, but did not observe any Vehicle Code violations. The officer stopped the van and the defendant was arrested for DUI drugs and possession of heroin. A caller who reports an erratic, possible drunk driver and describes the vehicle and its location will almost always be someone who witnessed the driving (firsthand knowledge). The caller reported the vehicle description, direction of travel and cross street, and there was a close time interval between the report and stop. “An erratic and possible drunk driver poses an imminent threat to public safety and there is a substantial governmental interest in stopping the driver as quickly as possible” (Peo. v. Wells (2006) 38 Cal. 4th 1078.)