Monder Law Group - News
California Implied Consent
What Am I Agreeing To?
California law says that if you are lawfully arrested by an officer (who has probable cause) to believe that you have been driving under the influence of drugs/alcohol, then you consent to taking a chemical test of your blood, breath, or urine for the purposes of determining your blood alcohol content (BAC). This is known as implied consent and is clearly laid out in California Vehicle Code, Section 23612(a)(1)(A):
A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.
What if I refuse the PAS test?
If you are a first time DUI offender, the penalties for refusing a chemical test are a hefty fine, imprisonment in county jail (if convicted), one year’s driver’s license suspension, and a required 9-month alcohol education program. For a second DUI and refusal your license will be revoked for two years and there will be extra jail time. A third arrest and refusal will be more jail time and license revocation for three years. Refusal to take the test also means there will be no special restrictions on your suspended license, such as the permission to drive to work.
But What if the PAS Test is Not Accurate?
This is why having a skilled criminal defense attorney, who specializes in DUI cases is critical. A skilled defense attorney will know if the prosecutor cannot demonstrate that the result is accurate and reliable, e.g. if proper procedures were not followed, the test result is not relevant (the defense has no objection to the PAS test used for its intended purpose, i.e. the presence of alcohol). If not relevant, it is not admissible.
A skilled criminal defense attorney will know a PAS machine (as opposed by the approved breath test analyzed by a licensed and regulated instrument maintained by a licensed crime lab at a police station) does not have a slope detector, one of the safeguards to guard against mouth alcohol and contamination and false high test results. Furthermore, when the operator of the machine does not secure two breath test results within +/- 0.02% of each other, the second safeguard against contamination (mouth alcohol and possible high results) is not available. Said failure to secure two test results within +/- .02% is a failure to follow the proper training and procedures for breath testing for blood alcohol content.
Your defense attorney should know the prosecution must show that the machine is timely checked for accuracy and such checks are “to be performed by certain persons employed by a forensic alcohol laboratory or by persons who have successfully completed training in using the instrument being tested and who are called upon to use a breath testing instrument in the performance of their duties” (Title 17, §1221.4(a)(2)(A), (a)(5). “Such training must include instruction in the theory of the device’s operation, detailed procedure of operation, practical experience, use of a precautionary checklist, and a written and/or practical examination.” (Id. subds. (A)(3)(A), (B), (C), (D), (E).) The results of the periodic accuracy checks are to be used by a forensic alcohol laboratory to determine if the instrument operates as required by Title 17.” (Id. subd. (1)(2)(A).)
If you have been arrested for suspected DUI and have refused a PAS test or chemical tests, it is imperative that you contact a DUI criminal defense attorney. You need an attorney with familiarity to the San Diego court system, and one who knows when and which arguments to make on your behalf. Call the Monder Law Group today.