A Defendant’s Refusal to Take Preliminary Alcohol Screening Test Does Not Show Consciousness of Guilt
Due to a recent decision handed down by the California Courts of Appeal, 1st District, a DUI defendant’s refusal to take a preliminary alcohol screening (PAS) test may not be admitted in court as evidence of the defendant’s consciousness of guilt.
In 2005, Leroy Jackson was charged with driving under the influence of alcohol and driving with a blood alcohol concentration of 0.08 or more.
At trial, the arresting officer testified that he pulled Jackson over when he observed him driving in a manner that suggested intoxication. The officer then testified to subjecting Jackson to a number of field sobriety tests. However, Jackson refused to take the PAS test, which is a hand-held breathe test. Although Jackson had refused the PAS test, the officer told the trial court he arrested Jackson based on his performance of the other tests. The jury found Jackson guilty.
Prior to trial, Jackson had filed a motion in limine to exclude evidence of his refusal to take the PAS test, but the trial court denied the motion. Jackson appealed the verdict contending that he had a right to refuse the PAS test and that evidence of his refusal to take it should have been excluded.
On appeal, the court agreed with Jackson. A police officer may use a PAS test to determine the concentration of alcohol in a breath sample; however, the officer must advise the person of his right to refuse the PAS test (Vehicle Code Section 23612). The court reasoned that it does not make sense for police to grant a right of refusal only to have it used as evidence to show the defendant’s consciousness of guilt. Therefore, the court concluded that the evidence of Jackson’s refusal was improperly presented to the jury.
A drunk driving charge under V.C. 23152 is a serious matter that requires extensive knowledge of the applicable rights and procedures involved. It is therefore imperative that you seek the legal assistance of an experienced DUI defense attorney who can help you raise the best possible defenses in your case. At Wallin & Klarich, our attorneys have been helping people fight DUI charges for over 40 years. Call us today at 888-280-6839 or visit us online at www.wklaw.com. We will be there for you when you call.