Should an Officer’s Failure to Advise a DUI Suspect on PAS Test Voluntariness Exclude Results?

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 ....