If an officer suspects that you are driving under the influence of alcohol, he or she may ask you to submit to a preliminary alcohol-screening (PAS) test, which is used to measure your blood alcohol concentration (BAC).
You’ve probably heard about the PAS test device or seen it on television. It’s a hand-held breathalyzer that is used at the scene of the traffic stop; it’s meant to give the officers an instant measurement of your BAC.
While the PAS test works most of the time, on occasion it does not get an accurate reading. In fact, it is possible for you to blow into the device, but the results are blank.
If the officer has reason to believe that you are under the influence of alcohol, the officer can arrest you and take you back to the station for a more thorough chemical test.
Let’s say this happened to you and when you were taken down to the station. This time you had a blood test and it came back 0.16% BAC – twice the legal limit. From the time of the arrest to the time you took the blood test, an hour and a half passed.
Based on the facts of your case, can you file a motion to suppress the blood test evidence?
Can you file a motion to suppress?
The PAS test probably came back blank because you were not blowing hard enough into the device. As far as the gap between when you were arrested and when your blood was drawn, there is not much you can do.
You see, the rule with chemical tests in California is that they can be used as evidence as long as they were taken within 3 hours of the alleged incident. Of course, a good attorney wouldn’t take this at face value. They would look to see if there are any rising BAC defenses.
Can you file a motion to suppress in this scenario? Probably not, unless the police failed to follow the standard protocol and procedures. It’s more than likely that we would question your BAC at the time you were stopped vs. what it was at the station.
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