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Excluding PAS Results

The “preliminary alcohol screening” test is used by most law enforcement agencies and it produces breath test readings which are usually not helpful to the defense. It is the hand-held device used at the scene of the arrest, usually after the cop has finished the field sobriety tests. A citizen has the RIGHT TO REFUSE — or not consent to — the test. In an appellate decision in November, 2010 the court ruled for the first time that the trial court should exclude the PAS admonition and the refusal and not allow the prosecution to argue a conscious of guilt. The ruling acknowledged that “consent” is required and that the PAS test is a search for alcohol is protected by the 4th amendment. This is a good case for the defense and is authority for a position that Mr. Artz has developed a motion in limine and argued successfully in most of his trials for the last 8 years. It provides a further basis for Mr. Artz to argue when there is a PAS test that the “consent” to such a search in not knowing and voluntary and exclude the results at trial.

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