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 ....