By Robert Phillips, Deputy District Attorney (Ret).

Legal Issues 

• Admissibility of PAS test results at a DMV license suspension hearing 
• Mandatory advisal of voluntariness of a PAS test pursuant to Vehicle Code § 23612(i) 
• Consequences of an officer’s failure to comply with a statutory mandate 

Rule: Constitutional rules of evidence do not apply to a DMV license suspension hearing pursuant to Govt. Code § 11513(c). An officer’s failure to provide a DUI detainee with an advisal relating to the voluntariness of submitting to a PAS test, as required by Veh. Code § 23612(i), does not prevent the admission of the PAS test results at a subsequent DMV license suspension hearing. 

Facts: Petitioner Gregory Kazelka was observed by a private citizen driving extremely slowly and swerving as he did so. This observation was reported to law enforcement. A California Highway Patrol officer responded to the area and, upon locating the petitioner, made similar observations. He therefore conducted a traffic stop. Upon being told the reasons for being stopped, petitioner didn’t argue the point, freely admitting that he had been drinking “too much” and was in fact “drunk.” After not doing well during a field sobriety test (i.e., “struggl(ing) to follow direction, (losing) his balance and...not properly count(ing)”), the officer informed Kazelka that “we’re going to do” a preliminary alcohol screening (PAS) test.  

The officer also told Kazelka that “California requires that I give the admonition for it.” However, the officer failed to inform petitioner that the PAS test was voluntary, as is required by Vehicle Code § 23612(i). Instead, the officer explained the purpose of the PAS test while telling him that like it or not, he was going “to do two of these no matter what.”  

The PAS tests showed results of 0.11% and 0.10% blood-alcohol content, above the 0.08% legal limit. Kazelka was arrested and taken to a location where he provided a “chemical breath sample” via a GCI, or gas chromatograph intoximeter, which resulted in confirmation of a 0.11% blood-alcohol content. (Not relevant to the issues here was the fact that the breathalyzer malfunctioned after the first test, preventing the required second test.)  

The officer subsequently prepared a sworn statement regarding the traffic stop and arrest, which included both the PAS test and breath test results. However, the page regarding the required admonitions was left blank. In a subsequent investigative report prepared approximately a week later (no doubt the result of the officer’s superiors discovering that the admonition page had been left blank), the officer checked a box falsely attesting to the fact that he had provided Kazelka with the statutory admonition as to the voluntariness of the PAS test.  

After Kazelka was notified by the DMV that his driver’s license was to be suspended, he requested a hearing to challenge the proposed suspension. In preparation for the hearing, Kazelka submitted a letter to the Department of Motor Vehicles (DMV) hearing officer objecting to the admission of the PAS test results, noting the officer’s failure to provide the statutorily required admonition informing him that the test was voluntary. The hearing officer rejected Kazelka’s argument, although he failed to directly address the admonition objection.  

Upon having his driving privileges suspended for four months, Kazelka filed a petition for writ of mandamus with the Lake County Superior Court, challenging the DMV’s order of suspension. The superior court granted the petition, ruling that the PAS test results should have been excluded “as the proper remedy” for the officer’s failure to provide the statutorily required admonishment.  

The court ruled that use of the exclusionary rule was appropriate in this case because the statute contained “mandatory language without reservation or factual exception.” Analogizing the failure to give the PAS test admonishment to law enforcement’s failure to provide a Miranda warning, the court further determined that the legislature intended the admonition to be an integral part of the statutory scheme because a driver had a “statutory right” to refuse a PAS test. The DMV appealed. 

Held: The First District Court of Appeals (Div. 3) reversed. The issue in this appeal was the admissibility of the PAS test results in an administrative DMV hearing concerning the suspension of a driver’s license following an arrest for driving while under the influence of alcohol. The guiding principles are provided for in the Government Code. Pursuant to subd. (c) of Gov’t. Code § 11513: “(A DMV license suspension) hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided.  

Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.” In interpreting this section, prior court decisions have found PAS breath test results to be admissible in DMV hearing under section 11513 if they comply with either the regulations set forth in California Code of Regulations, title 17, or satisfy three foundational elements as set forth in People v. Adams (1976) 59 Cal.App.3d 559.  

The Adams Court listed these three requirements at page 561 as: (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator. (See Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974.) Here, the DMV used the Adams foundational criteria to support the admission of the PAS test results at the petitioner’s license suspension hearing. Specifically, it was noted that the PAS test satisfied the Adams foundational requirements as demonstrated by the calibration officer’s testimony that the PAS device was properly maintained and his sworn statement that he is qualified and trained on the proper operation of the PAS device.  

Kazelka did not dispute these findings. Instead, he argued that the officer’s written statement, and thus the PAS test, is “rebutted,” based on the officer’s misrepresentation regarding whether he had provided the required PAS test admonition. In making this argument, Kazelka cited Veh. Code § 23612(i) where it says that: “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...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.” (Italics added.)  

The court found, however, that the petitioner failed to explain why the officer’s misrepresentation about having provided the required admonition had any bearing on the officer’s statement that he is qualified and trained to use the PAS device. Also, nothing in the record suggests any improper device usage. As such, the court ruled that “substantial evidence” supports the general admissibility of the PAS test results under Adams, rejecting the superior court’s ruling to the contrary where it concluded that the PAS test results are to be suppressed due to the officer’s failure to properly advise the petitioner as required by Veh. Code § 23612(i).  

Despite describing the officer’s obligations in advising a suspected drunk driver, the legislature did not list any consequences for failing to do so. The court here “decline(d) to interpret such silence as a mandate to exclude PAS test testing evidence. The court reached this conclusion by looking at the legislative history of Veh. Code § 23612(i). The court determined that section 23612(i) “was enacted to aid the prosecution of driving under the influence cases and not to exclude the admissibility of PAS evidence.” More specifically, the legislative history demonstrates that the statutory admonition was designed to highlight the contrast between the pre-arrest PAS testing from mandated post-arrest chemical testing, thus preventing drunk drivers from avoiding post-arrest testing by later claiming that the PAS test was all they were required to do.  

Nothing suggests that the statutory admonition requirements impact the admissibility of the PAS testing results. The trial court erred in concluding otherwise. The court concluded: “While courts have traditionally utilized the exclusionary rule as part of ‘constitutional procedural due process in criminal cases,’ [i]t ‘is rarely applied in civil actions in the absence of statutory authorization.’ (Park v. Valverde (2007) 152 Cal.App.4th 877, 883)  

The exclusionary rule is only involved in civil proceedings when they ‘so closely [identify] with the aims of criminal prosecution as to be deemed “quasi-criminal.” However, the ‘suspension of an individual’s driver’s license (for instance) is a civil remedy that is not penal in nature. (Ibid.)’ Further, ‘the purpose of the exclusionary rule was primarily to deter law enforcement officers who may be tempted to employ unconstitutional methods to obtain evidence; a purpose that would not be furthered with the rule’s application in the administrative context.’”  

The court also rejected the superior court’s comparison of the officer’s failure to advise a DUI suspect pursuant to section 23612(i) to a Miranda violation, there being no Fifth Amendment right to refuse to take a blood or breath test. And lastly, the court rejected the petitioner’s belated argument that his due process rights were violated. In making this argument, Kazelka argued that the hearing officer “acted as both an advocate and an adjudicator when she served the California Highway Patrol a subpoena for the maintenance records of the PAS device.”  

The court rejected this argument, reasoning instead that apart from serving a subpoena for records, petitioner did not identify any “advocacy” by the hearing officer. Nor did Kazelka assert that the hearing officer mischaracterized any evidence or displayed actual bias, such as by leading questioning of the officer witness. Further, the hearing officer admitted the records regarding the PAS device without objection from petitioner’s counsel.  

And lastly, the court noted that PAS evidence is of a type that would likely be entered into evidence in any DMV hearing. The court therefore concluded that the hearing officer did not act in the dual role of an advocate and adjudicator, thus precluding any argument that petitioner’s due process rights were violated. The trial court’s holding was thus reversed, the appellate court directing the superior court to enter an order denying Kazelka’s petition for writ of mandate and thus reinstating the DMV's suspension order. 

Note: This decision is not intended to excuse the officer for having failed to provide the statutorily required advisal to the effect that submitting to a PAS test is voluntary, as required under V.C. § 23612(i), and worse yet, later falsely attesting after the fact that he did in fact provide that advisal. At one point in the decision (at p. 1251), the court makes note of the fact that the officer’s “failure to provide the admonition and (his) subsequent misrepresentation regarding that admonition is highly concerning.” In most circumstances, this is called “perjury.”  

However, there are no adverse evidence-admittance consequences for the officer having screwed up here, this being a civil case as opposed to criminal. If you do screw up, however, by (for instance) failing to perform a duty required by statute (or any other mistake you might make), the only professional and ethical choice you have is to own up to it. On its face, it appears here that the officer failed to do this.  

Otherwise, this is a great case for the People, limiting the use of the exclusionary rule to constitutional screw ups as opposed to violations of a legislative mandate pursuant to a statute alone.