In many cases the police take a breath sample in the field (PAS, short for preliminary alcohol screening) and fail to properly advise the person of their right to refuse under California law. Because the officer is seeking a sample of a person’s deep lung air, a breath sample is a search, Skinner v. Railway (1989) 489 U.S. 602, 616-617, which is not the case with other FSTs, See People v Bennett (1983) 139 Cal.App.3d 767, 771, and given that warrantless searches are presumptively illegal, the administration of the PAS test requires actual consent.

Furthermore, there is no implied consent to take a PAS test. Vehicle Code §23612 (a)(1)(A) provides that “any 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 alcohol content of his or her blood if lawfully arrested . . .” V.C. §23612 (a)(1)(C) provides in essence that “the testing shall be incidental to a lawful arrest” . . . for DUI. Vehicle Code §23612(a)(1)(A) and 23612(a)(1)(C) do not apply to the P.A.S. test because the defendant was not lawfully arrested when the police searched defendant.

Where the government relies on consent to justify a warrantless search, it must establish by substantial evidence that the consent was voluntarily given. Mere acquiescence to a claim of authority will not suffice. The People must show that consent was uncontaminated by any duress or coercion, actual or implied. People v. Challoner (1982) 136 Cal.App.3d 779, 781. When a driver is confronted by an armed and uniformed police officer to blow into a breath box on the roadside or face arrest, the circumstances are pregnant with coercion.

Here defendant never vocalized any words whose meaning could be construed as consent to the test. Although he offered no resistance to the administration of the PAS test, the defendant’s conduct can only be construed as “submitting” to a PAS test.  There was no manifestation of consent. The evidence instead shows that defendant submitted to the search and that this submission was due to the officer’s expression of lawful authority.  Acquiescence to lawful authority does not amount to consent. (See People vs Ling (2017) 15 Cal App 5th Supp 1.)

California law requires the officer to tell the suspect they have a right to refuse the PAS. The Police Officer clearly failed to follow the law in this case. The failure of the officer to advise the driver of his right to refuse the PAS added to the coercive nature of the encounter.

Indeed, Vehicle Code section 23612 (H and I) states:

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) 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, or a combination of alcohol and 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. (Emphasis Added).

The California Vehicle Code §15 directs that the use of the term “shall” is mandatory as it relates to the language contained in Vehicle Code §23612.

Indeed, People vs Jackson (1990) 189 Cal App 4th 1461 confirmed the requirement that a driver be advised of the statutory right to be advised of the purpose of the search and to refuse the intrusion as mandated in VC 23612.

The failure of the officer to follow the legal command to inform the defendant that he had an expressly enacted right to refuse the PAS test, has Fourth Amendment significance. It must be remembered that mere “submission” to a search is not the equivalent of consent. Where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. See Florida v. Royer (1983) 460 US 491,497.

Here, because the officer failed to comply with the law there is no evidence of a “knowing and intelligent waiver” of the right. The fact that the driver “submitted” to a PAS test does not equate to a conclusion he “consented” to the test for Constitutional purposes.

Courts have long held that the “touchstone of the Fourth Amendment to the United States Constitution is reasonableness. (See Florida v. Jimeno (1991) 500 U.S. 248, 250), it is not reasonable for a policeman to ignore a statutory command designed to protect people’s liberty. As such, the PAS numerical results should be suppressed as unreasonable and collected without a search warrant.