What does the status code “ambient fail” mean on the Datamaster DMT Breath Machine?

Posted on April 8, 2023 by thetorranceattorney
Top Torrance Criminal Lawyer
Matthew Ruff, Torrance DUI Attorney

The Datamaster DMT breath testing machine is used to determine blood alcohol concentrations of subjects arrested for DUI in Los Angeles County. The machine is used in cities such as Torrance, Redondo Beach, Palos Verdes, and most other cities in LA County except for Long Beach and the City Of Los Angeles.

The device is a “second generation” machine which replaced the Datamaster cdm machine which was used by the county for over two decades. The machine uses infrared absorption as the basis for its testing. Essentially a breath sample passes into a sample chamber of fixed volume and temperature. The chamber is essentially a cylinder approximately the size of a yellow highlighter commonly found in a office.  During the testing process a beam of infrared light passes through the chamber. When the light beam exits the chamber, it is filtered to remove undesired wavelengths. The remaining wavelengths are converted to an electrical signal directly proportional to the concentration of the alcohol in the breath sample.  The signal is commensurate to the amount of energy absorbed as it passes through the alcohol molecules in the chamber.

There are many error codes that can be generated by the machine during the breath sampling process. Among the more common is that of “ambient fail”. Sometimes the status code will be reported when the attorney reviews the usage logs and maintenance history of the machine during the discovery process.

Once the usage logs are obtained from the agency they should be thoroughly audited to determine what error messages were reported from a time period approximately 30 days before and 30 days after the test in question.

What does the error message “ambient fail” actually mean? It means the DMT was unable to establish a zero alcohol reference when measuring the air around the instrument during the initial air blank. This can be caused by a poorly ventilated room that does not allow for sufficient clearing of alcohol vapors, a breath tube pointed toward a subject, room deodorizers or hand sanitizers, etc. If possible, remove the source of ambient alcohol or move it farther away from the instrument and begin a new test with a new 15-20 minute deprivation observation period.

According to the LASD training manual, If the DataMaster DMT detects alcohol or another detectable substance in the vicinity of the instrument (ambient air) during the initial purge step in the testing sequence, the test will be aborted. Both the display and the report will indicate Ambient Fail. Operator may make notation(s) when prompted by the instrument “Any comments?” The report shall be retained by the arresting agency. The operator has the option to administer another breath test (on the same or another DataMaster DMT) or request a blood or urine sample. It is recommended that the source of the ambient fail be identified and removed from the vicinity of the DataMaster DMT before proceeding with another breath test on the same instrument.

The bottom line is this error code is telling the operator that a contaminant is present in the room and it should be removed before proceeding forward with an evidentiary test of the DUI subject.

In many cases the contamination is due to hand sanitizer in the room. If alcohol based hand sanitizer is too close to the machine it can cause this error code to display. The problem is that if the hand sanitizer is causing the machine to fail it is also likely entering the airway of the test subject and contaminating their airway and mouth cavity which could result in a false BAC measurement. Ideally the contaminant should be removed, the room should be aired out and the testing process should be started over with a new 15 minute observation period. If this is not done it can be argued the subject sample that was obtained is not scientifically reliable and violated the mandates of the California Code of Regulations Title 17.

Here is the legal argument: The alcohol molecules in the hand sanitizer that are floating around in the room ambient air get sucked up into the machine during the purge sequence and cause the test to abort. Those same alcohol molecules that got sucked in the machine also very likely got inhaled by the subject who was sitting in the same room and subsequently get absorbed in the mucus lining of the esophagus, mouth cavity and trachea. These alcohol molecules then get expelled back into the machine when the subject breathes into the breath tube, consequently causing a falsely inflated BAC reading. The sample contains alcohol molecules not originating from the alveolar region of the lungs. Without a new 15 minute deprivation period there is no way to be sure the contamination did not influence the measured results of the subject taking the test.

This situation is very analogous to when a breath test subject may burp or belch raw alcohol from his or her stomach. In this instance there is little dispute that the introduction of alcohol molecules from the stomach can falsely exaggerate BAC results, the same theory applies to an occurrence of alcohol molecules entering the airway from a contaminated ambient environment.

Matthew Ruff is a Torrance DUI Attorney with over 25 years experience fighting DWI and other alcohol related offenses.

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What is a “blank error” on the Datamaster DMT Breath Machine?

Posted on February 25, 2023 by thetorranceattorney

The machine uses infrared principles to test the alcohol concentration in a breath sample. A beam of infrared light passes through the chamber and measures the concentration of alcohol molecules based on the reduction of energy as the beam passes through the sample. The breath sample is tested inside a sample chamber which is about the size of a yellow highlighter. The DataMaster DMT breath testing instrument is designed to undergo a number of processing steps prior to the capture and reporting of a subject breath test result. These steps include checking components for function, monitoring heated zones, adjusting a measurement baseline to ambient air, checking detector response, introducing a simulated breath containing alcohol vapor, ensuring sample cross-contamination is prevented, and measuring the quality of breath sample.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance DUI Attorney


The Datamaster DMT breathalyzer is the primary breath testing device used in Los Angeles County for DUI cases. The machine has been around for approximately 20 years and replaced the CDM model for the Los Angeles County Sheriff’s Department Crime Lab. The instrument is used by most cities in LA, including Redondo Beach, Torrance, Rancho Palos Verdes and El Segundo, Manhattan Beach, Rolling Hills, Lomita and Hermosa Beach just to name a few.

The machine can display a number of different errors or error codes that indicate various problems that occur during the testing process. One of the most common problems is the “blank error” code which simply means the machine could not achieve a zero alcohol reading when it went into the sampling process.

According to the manufacturer , the instrument “obtains a reading greater than .003 during the blank test”. You see, the device sucks in a small amount of outside or “ambient” air and runs it through the sample to ensure it reads zero for alcohol, this is called the “blank test”. During this process the air could be contaminated with alcohol from hand sanitizer or cleaners and it gets pulled inside the machine. Hence the term “blank error”.

The device manufacturer also has this to say about the “blank error” message: The Datamaster DMT may have detected a strong presence of alcohol near the instrument. It may be beneficial to ventilate the area prior to running an additional test.

According to experts, the best practice is to air out the room and ventilate the area as well as wait 15 minutes to retest the subject because whatever was contaminating the ambient air also likely contaminated the subject. The manufacturer also recommends ventilating the sample chamber for a minimum of 5 minutes.

This error is not necessarily a big problem as long as the proper procedures are followed to remove the contaminated air. However, if the contamination has not been removed it can continue to affect the testing process by contaminating the air the subject breathing inside the room. Failure to address the error code can be the cause to a challenge of the reliability of any sample obtained in close temporal proximity to the code being displayed.

There are a number of other Datamaster DMT error messages that can be displayed and reported during a DUI breath test. These “red flags” can often mean a problem with the integrity and reliability of the sample. In Los Angeles County California the records can be obtained by contacting the LASD Forensic Alcohol Unit. The records request should include a demand for the instrument usage logs, maintenance history and accuracy records for the pertinent time frame.

Matthew Ruff is a local DUI Attorney in Torrance California. With over 25 years experience in criminal defense, Matt is here to defend clients charged with driving under the influence and other serious crimes.

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Can a DUI Prevent You From Entering Canada?

Posted on January 11, 2023 by thetorranceattorney
Top Torrance Criminal Lawyer
Matthew Ruff, Torrance DUI Attorney

The question of whether a pending DUI or a conviction for driving under the influence in California will bar travel to Canada is a recurring question that has been a source of confusion for many decades. You see, Canada has very strict regulations on who can enter the country, whether it be for business or a simple day trip.

The problem occurs when a traveler presents himself for entry at an airport or cruise terminal and is surprised to discover that immigration officials prevent them from entering the country.

To avoid problems, many experienced DWI lawyers will refer the client to a Canadian attorney who can properly investigate their individual situation and give them accurate legal advice about their future trip to Canada. One prominent legal counselor has provided information on the topic and always recommends a complete assessment prior to travel.

According to one attorney: Refusals and DUIs are now serious criminality in Canada because they are punishable by 10 years or more. All serious offences make a person inadmissible forever until they apply for relief, though criminal rehabilitation, which they become eligible for once 5 years have passed from completion of their sentence.

Furthermore, refusal to provide a breath specimen is a criminal offence in Canada, that makes a person inadmissible to Canada forever, until such time as they obtain relief through an application called Criminal Rehabilitation [the same is true if they were convicted of a DUI].  The legislation that sets out this rule does not consider how the offence was treated in the state where it occurred: it makes no difference if it is a misdemeanor or felony or if it is not classified as a criminal offence at all.  The only relevant information is whether the failure offence is a criminal offence in Canada and the maximum sentence in Canada. 

So the answer seems to be that a person is inadmissible to Canada two situations; either for a criminal conviction for driving under the influence or for having committed an act that would be an offence in Canada.  So, it makes no difference how the offence was classified in the state where it occurred.  This appears to be the case according to the Canadian Immigration and Refugee Protection Act.  Under subsection b if that Act a conviction renders a person inadmissible and subsection “C” is “committing an act”.  Thus, if a person is convicted for an offence that is not a criminal offence in the state where it occurred, but it is equivalent to an offence under an Act of Parliament in Canada, inadmissibility ensues. This seems to encompass those situations where a person avoids criminal prosecution but still is suspended by the DMV for either refusing or driving with a BAC over .08.

So, what can a traveler expect when entering the country?

Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested.  By the official’s training, experience, and hunches, follow-up questions would depend on the traveler’s answer and demeanor.

Some foreign nationals pass through with no questions at all.  It depends on staffing, how busy they are, the day of the week, whether a supervisor is present, which port of entry is used, and a profiling algorithm.

If entering by plane, officials will likely have passenger lists they can research ahead of time.  But just about every border crossing will have electronic passport scanners that can instantly bring up a criminal history.  Importantly, they don’t access state records; only data from the FBI National Crime Information Center (NCIC).

Torrance DUI Attorney Matthew Ruff has nearly 30 years experience defending good people charged with driving under the influence in California. His office serves the entire county of Los Angeles including Redondo Beach, Palos Verdes, Lomita, El Segundo, Manhattan Beach, Santa Clarita and Hermosa.

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Is Low Volume In A DUI Blood Vial A Potential Defense?

Posted on January 5, 2023 by thetorranceattorney

Here is the situation: You were arrested for DUI and submitted to blood testing, the sample came back above .08 but the volume of blood in the tube is below the normal quantity (typically 10 ml). The question becomes is this a sign of something wrong?

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance DUI Attorney

Possibly, you see the blood tubes used in DWI testing will contain a vacuum that will cause the vial to fill to 10 ml if collected properly. So, when the tube is shown to have less than 10 ml it creates a situation that needs further investigation.

Some possible issues are a leak in the tube stopper which would have caused the vial to lose vacuum. This could cause contamination of the vial. Once a blood vial is contaminated there is a likelihood of fermentation and endogenous production of alcohol inside the tube. If the contents of the tube are contaminated by outside air there is a chance the tube now contains bacteria (candida albicans) which are everywhere. Alcohol is created when bacteria is nourished by sugar (contained within the blood). The bacteria eat the sugar and excrete alcohol.

If the reason that the tube didn’t fill all the way is that it lost some of its vacuum, then whatever was in the air got into the tube at the time it lost vacuum. It is no longer sterile, and if there was alcohol in the air when the tube lost vacuum, it is now in the tube, and will show up in the test result. In other words, it won’t give you a reliable test result, because we can’t say the test result reflects what was in your client’s blood when the sample was drawn. So if the person who drew the blood says that they did everything correctly, attempted to draw a full tube of blood, and don’t know why it didn’t fill all the way, any test result from the tube is unreliable.

Another problem concerning low volume blood tubes is the increased likelihood of higher concentrations of sodium fluoride and potassium oxalate in the vial resulting in a “salting out” effect of the sample. The increased concentrations create a higher level of analytes in the headspace sample.

What about situations where the phlebotomist intentionally collects less than 10 ml in the vial?

The evidentiary blood sample vials are commonly designed to hold 10 ml. Since they are pre-loaded with 2 chemicals in the form of powder inside the tube from the manufacturer – potassium oxalate and sodium fluoride, and the amounts of each should be tightly controlled (although this has been, on occasion, called into question).

Failure to put the right amount of blood into the tube screws up the blood:powder ratio which has implications at the lab. But it also signals that there was a procedural problem with the blood draw itself. That has implications for defense based on Acceptable Medical Practice (AMP) challenges.

In any event, anytime a blood tube contains less than 10 ml of blood it is cause for concern. California DUI Attorney Matthew Ruff has nearly 30 years experience fighting drunk driving cases. If you have a pending case and are seeking a defense lawyer who knows the science and laws to fight a driving under the influence charge, contact Matt for a consultation regarding the possible defenses in your case.

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MUST a Marine Corps Reservist self-report a DUI Arrest that occurred while the Marine was NOT on duty (in status)?

Posted on September 24, 2022 by thetorranceattorney

Discussion- The Navy has a NAVINSTR-, Nav Instruction, that MANDATES that Sailors (and Marines too), self-report ANY arrest or criminal charge.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

I used the term MUST above because it is the basis of a criminal charge.  That is, if the UCMJ says you MUST do something and you fail to do it you can be Court-Martialed.  ALSO, you can receive lesser PUNISHMENT.  That means, Article 15/Non-Judicial Punishment/Captain’s Mast.  NJP has to be processed THROUGH JAG/Attorney channels, BUT there is no Judge, no prosecutor and no defense counsel (though you get to speak with a defense counsel, military and civilian if you want), prior to NJP.  Unless you are attached to a ship, you can also turn down NJP and demand trial by Court-Martial (bringing in criminal procedure and judges lawyers etc).  Thus, there has to be a crime (punitive article) underlying any such charge.  For ACTIVE DUTY (so Regular Navy/Marine/Air Force/Army etc), AND those Reservists/Guardsmen ON DUTY/IN STATUS, Navy/Marines MUST report any arrest/charge.  Failure to do so can result in Court-Martial etc.  It has in the past.  Servicemember failed to report arrest, underlying charge dismissed, whatever, but military Court-Martialed and Convicted servicemember for failure to report (and this has happened more than once and if I remember correctly was also drummed out (With such a charge and the fact that they brought it to CM, they were looking for the kick.  They got it. 

However, Reservists/guardsmen are DIFFERENT. If they do something while NOT in status there is no jurisdiction over them. They cannot be punished for their “out of status” conduct. Hence, if the DWI Arrest occurred while out of status he also need not report. That is, if he failed to and they found out could they Court-Martial him, NJP him, administratively separate him, or such, based on the MISCONDUCT OF failure to report? NO. They cannot because jurisdiction does not lie. Therefore, in most cases he/she need not.

Anyone facing a DUI arrest in California should consult with a criminal defense attorney and a JAG lawyer as soon as possible to get specific legal advice regarding there individual situation.

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Can Physical Ailments Such As Long Covid Cause False Positives During Field Sobriety Tests?

Posted on September 22, 2022 by thetorranceattorney

The PAS requires a certain amount of breath pressure before it will capture a sample of breath suitable for a BAC result. Many folks have physical limitations or breathing problems that limit their ability to perform. For example, if a person is suffer from Long Covid they can have lung scarring that may prevent them from providing sufficient breath pressure to obtain a result on the preliminary alcohol screening device.

Second, people with physical disabilities may not be able to perform SFST exercises. Long Covid patients again may have problems. Some officers may ask if the subject has medical problems but not actually “dig in” and inquire whether they may be suffering from Long Covid.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

There is a real danger of cops making incorrect arrest decisions on drivers showing signs of fatigue, shortness of breath and other symptoms of Long Covid. These objective symptoms can be confused with alcohol and/or drug impairment.

Most DUI Attorneys will or should inquire whether the client is afflicted with certain medical conditions that can create possible issues in the defense of DWI.

Regarding SFST exercises, only the HGN requires the officer to perform a “medical assessment”. Other FSTs such as the Walk and Turn and One Leg Stand do not require a medical assessment phase. Therefore, common physical ailments can often mimic signs of impairment.

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The DMV Must Prove A Driver Was Properly Admonished Of The Consequences In Order To Suspend A License For A Refusal

Posted on September 11, 2022 by thetorranceattorney


When a driver was not admonished in compliance with Vehicle Code section 23612(a)(1)(D), because the officers improperly read the admonition or misstated the admonition, a refusal finding cannot be sustained at a DMV hearing.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

 Decker v. Department of Motor Vehicles, (“Decker”) (1972) 6 Cal.3d 903, holds that when a police officer provides an inaccurate test admonition following a DUI arrest, there cannot be a refusal. 

In Decker, the California Supreme Court addressed the elements of section 13353. The appellant was arrested for DUI and advised that if he refused to submit to chemical testing, his driving privileges could be suspended for a period of six months. Id. at 905. Decker responded that he understood that admonition but that “they won’t take my driver’s license.” Id. The court rejected DMV’s argument that substantial compliance with the requirements of section 13353 was sufficient. Id. at 906.

In so doing, the Decker court agreed with the rationale and conclusion set forth in Giomi v. Department of Motor Vehicles, (1971) 15 Cal.App.3d 905, 907, which held that a proper warning of the consequence of refusal is one of the elements essential to suspension of license. Hence, an admonition is adequate if it states that refusal “would probably” cause suspension, but an admonition that refusal “could” result in suspension was insufficient because it suggests only a possibility of suspension. Id. at 905. The Decker court stated that an officer’s qualification of the admonition, without explanation, could mislead the driver concerning the legal realities of the situation and thereby defeat the purpose behind the statute. Id. at 907.

The court cautioned that a trial court is obligated to determine whether the driver was in fact misled by inaccurate advice and whether his refusal to submit to a test was a result thereof. Id. at 907. See also Hoberman-Kelly v. Valverde, (2013) 213 Cal.App.4th 626, 632-33 (where driver expresses confusion, arresting officer must elaborate on the juxtaposition of Miranda warning and implied consent warning and inter alia, inform him that he has no right to consult an attorney before making a decision that he will or will not submit to chemical test).

Defending a refusal allegation at a DMV hearing is imperative if the client wishes to keep his driving privileges in California. If the APS hearing results in a finding of a chemical test refusal the license will be suspended and cannot be set aside even if the driver is successful in getting an acquittal in Court.

Matthew Ruff is a Nationally Recognized DUI Lawyer in Torrance CA. With over 25 years experience in defending drunk driving cases, Matt is often consulted by other professionals for guidance in this very complex area of the law.

Top Torrance DUI Lawyer Matthew Ruff wins Refusal Hearing

In order to win a DMV hearing involving a refusal allegation you must be prepared and be familiar with the current laws in California. Matthew has the highest track record of “set asides” for APS Hearings. What this means is he saves licenses for his clients who have been arrested for DUI. Refusals are particularly difficult because the officer usually does a good job of submitting paperwork that will guarantee a suspension of your license. Why? Because the officer wants to punish you for being non compliant and follow his orders. Vehicle Code section 13353 governs the suspension and/or revocation of your license for failure to submit to a chemical test.

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If you have been recently arrested for DUI and plan on traveling to Canada, you may face some obstacles.

Posted on September 1, 2022 by thetorranceattorney

For context, Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested.  By the official’s training, experience, and hunches, follow-up questions would depend on the traveler’s answer and demeanor.

If you are planning on traveling to Canada in the near future and have recently been arrested for DUI you should be aware you may face admissibility to the Country.  Many attorneys believe that either the traveler’s admission of a DUI arrest, or the confirmation by digital record of a DUI arrest, without more, may be enough to trigger inadmissibility.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

Some foreign nationals pass through with no questions at all.  It depends on staffing, how busy they are, and a profiling algorithm.  If entering by plane, officials may have passenger lists they can research ahead of time.

But just about every border crossing will have electronic passport scanners that can instantly bring up a criminal history.  Importantly, they don’t access state records; only data from the FBI National Crime Information Center (NCIC).

Here are details on how to check to see what’s in the NCIC database, prudent for any U.S. citizen heading to Canada with any doubt as to what will show up :

https://www.fbi.gov/services/cjis/identity-history-summary-checks

It used to take a month or more to obtain that FBI Identity History Summary.  But it’s now much faster.  What’s there and what’s not there is critical, including arrests, convictions, dismissals, and acquittals.  Sometimes the information there is incorrect or incomplete, depending on whether, when, and how accurately the data is sent there by local law enforcement agencies and courts.

Matthew Ruff is a Torrance DUI Lawyer with nearly 30 years experience defending drivers accused of all manner of alcohol and drug related charges.

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Were You Arrested For DUI and “Submitted” To a PAS Breath Test? You May Need To File A Motion To Suppress

Posted on August 7, 2022 by thetorranceattorney

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.

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Arrested For DUI, Do You Need A Criminal Defense Attorney Or A DUI Lawyer?

Posted on July 8, 2022 by thetorranceattorney
Matthew Ruff, Torrance Criminal Defense Attorney

In California the charge of driving under the influence is a misdemeanor criminal offense unless someone is hurt or the accused has more the 3 priors in the last 10 years. The offense carries stiff penalties such as potential jail time and loss of driving privileges. When choosing who to defend you is it better to get a criminal defense lawyer or someone who specializes in drunk driving cases?

Since the charge includes DMV consequences in addition to possible penal consequences it is best to choose an attorney who has special knowledge of DWI and the intricacies involved. For example, the administrative hearing associated with the case involves evidentiary rules and procedures more akin to civil than criminal. The unique legal rules require an understanding of a broad spectrum of law.

The evidence in a driving while intoxicated case is also very different than any other case. For instance, the tests given to a suspected impaired driver are called SFST’s and require an understanding of NHTSA standardized training and the protocol and methods utilized in the administration of the tests. A DUI Lawyer is educated on the methods to attack the tests in Court and to cross examine the police officer regarding any mistakes made in the investigation.

With regard to the chemical test aspects of the case, it is imperative to have an understanding of the science and regulations which govern drug and alcohol testing in the State of California. You see in order to establish defenses in the case you must be able to spot issues such as defects in the blood collection process or how the breath test was conducted. Moreover, the 4th Amendment to the Constitution which protects citizens from unreasonable searches and seizures plays a big part of driving under the influence practice. The lawyer must have a working knowledge of the case law and statutory laws governing the challenge of police practices.

Here’s a recent example of how specific knowledge lended itself to the favorable resolution of a DUI case in Torrance Court. The client chose a breath test and Matt obtained the records of the machine used. He discovered a malfunction in the breath sample hose heater which he used to get a reduced charge in the case.

Another example is a case where the client submitted to a blood test and the BAC came back well above the legal limit. At the DMV hearing Matthew was able to expose the fact the sample may have been collected in violation of Title 17 of the California Code of Regulations. As a result the License was returned. You see, the Department of Motor Vehicles gives great weight to a violation of official regulations therefore a good understanding of the relevant rules and regulations will assure a favorable outcome. Likewise, in another retained case Counselor Ruff was able to expose a violation of then CCR 1219.3 which compels the breath test operator to continuously observe the subject for a minimum of 15 minutes prior to the collection of a breath sample, result was a dismissal and return of driving privileges.

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