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Points & Authorities to Exclude P.A.S. Test for BAC

MOTIONS IN LIMINE: Exclude P.A.S. Test Results

I. THE PAS TEST RESULT IS NOT ADMISSIBLE IF THE PROPONENT DOES NOT PROVE EITHER COMPLIANCE WITH TITLE 17 OR A FOUNDATION, i.e. THAT THE TEST WAS ACCURATE AND RELIABLE

The issue is whether the proponent of the evidence can demonstrate a foundation for the chemical test results, i.e., the accuracy and reliability of the PAS result for blood alcohol content. If the People cannot demonstrate that the result is accurate and reliable, e.g. if proper procedures were not followed, the test result is not relevant. The defense has no objection to the PAS test used for its intended purpose, i.e. the presence of alcohol. If not relevant, it is not admissible. See People v. Williams (2002) 28 Cal.4th 408. Also, the trial judge has a duty (“special obligation”) under Kumho Tire Company v. Carmichael (1999) 526 U.S. 137 to ensure that all scientific testimony is not only relevant, but reliable.

II. THE WILLIAMS’ DECISION REQUIRES THAT THE PROSECUTION DEMONSTRATE THAT THE TEST IS RELIABLE, AND THEREFORE RELEVANT, AND THUS ADMISSIBLE.

A PAS machine used in the field (as opposed to the breath test analyzed by a licensed and regulated instrument maintained by a licensed crime lab under directions and procedures approved by the Department of Health) does not have a slope detector, one of the safeguards to guard against mouth alcohol, contamination, and false high test results.

So, contrary to the evidence in Williams, supra, in which the court found the test was reliable, the evidence in this case may be that the test was not properly administered and the personnel involved in the test were not qualified and/or competent. (Who knows, without compliance to discovery, whether the prosecution can meet the third element of Adams and demonstrate that the breath testing device was in proper working order and operating accurately at the time.)

The duty of the prosecution is to demonstrate that “all three foundational elements must be established for the evidence to be admissible; the chain is no stronger than its weakest link.” People v. Williams, 28 Cal.4th 408 at 417 fn.5. Those three requirements are the formulated rules “by which the reliability and thus the relevance of scientific evidence is determined” People v. Williams, 28 Cal.4th 408 at 414. The prosecution must “demonstrate that correct scientific procedures were used in a particular case.” em>People v. Williams, Id. Admissibility depends on the reliability and the consequent relevance of the evidence.

The Williams court noted that compliance with Title 17 demonstrates a standard ofcompetency and sufficient compliance with the regulations. If there is non-compliance with Title 17 (as in this case), the prosecution can obtain admission of the breath test results but it “then must qualify the personnel involved in the test, the accuracy of the equipment used, and the reliability of the method followed before the results can be admitted.” People v. Williams, id. at 416. As noted by the California Supreme Court and as the facts per Adams, 59 C.A.3d 559, the test results were admitted in Adams because they were reliable (they met the foundational requirements not withstanding noncompliance with one technical regulation). In Adams, there was no question raised as to accuracy and reliability, and “noncompliance (a minor violation of Title 17) goes merely to the weight of the evidence.” People v. Williams, supra at 416. The Williams court found it significant that in Adams the defendants did not “attempt any showing that the noncompliance affected the test results in any way, let alone rendered the results inaccurate.” People v. Williams, supra, at 417. The Williams court agreed with the holding of Adams that breath test results are admissible upon either a showing of compliance with Title 17 or the foundational elements of: 1) properly functioning equipment; 2) a properly administered test; and 3) a qualified operator. All three elements must be proved.

In Williams, the court found that the machine always performed within the acceptable range and any variance was to the benefit of the defendant. The court found that there was a record of reliability that the trial court could have utilized. However, without proof of the three elements, there can be false high results (differing from the facts of Williams).

The California Supreme Court concluded with the statement that it shared the Court of Appeals “concern that laxity in complying with the regulations may undermine the reliability of the test.” …Furthermore, compliance (with the regulations) will insure that the tests retain their reliability, and their relevance and admissibility…” People v. Williams, supra, at 418.

III. THE TESTING OF BREATH SAMPLES FOR B.A.C. MUST COMPLY WITH STATUTES AND REGULATIONS WHICH MANDATE THE PROCEDURES TO BE USED BY LAW ENFORCEMENT IN ORDER TO ESTABLISH A FOUNDATION FOR THE TEST’S ACCURACY AND RELIABILITY

Health & Safety Code §100715 reads:

“The testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol in the blood of persons involved in traffic accidents or in traffic violations shall be performed in accordance with regulations adopted by the department. The regulations shall establish the procedure to be used by law enforcement agencies in administering breath tests for the purpose of determining the concentration of ethyl alcohol in a person’s blood…”

Health & Safety Code §100720 reads in part:

“Each laboratory in the state that performs the test referred to in sections 100710 and 100715, shall be licensed by the director.”

The regulations are the detailed standards for the licensing and operation of forensic alcohol laboratories, the training of personnel, the collection and analysis of samples in general, and for breath testing, and the manner of expressing results (Title 17, §§1215-1220.4).

“The foregoing regulations establish a standard for the competency of the results of blood alcohol tests (People v. Adams, [1976] 59 Cal.App.3d [559,] 567.) Compliance with the regulations establishes both a foundation for admission of test results into evidence in any proceeding and a basis for finding such results to be legally sufficient evidence to support the requisite findings in such proceeding. (Ibid.)(Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141-142,) All the more does this reasoning apply in this criminal matter because Davenport was a civil matter involving a mere DMV license.

“An ‘official duty’ is imposed upon law enforcement agencies and their officers and employees under section 100715 et seq of Health and Safety Code and regulations promulgated thereunder to perform blood alcohol analyses by methods devised to assure reliability. Section 100715 provides: ‘The testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol in the blood of persons involved in traffic accidents or in traffic violations shall be performed in accordance with regulations adopted by the State Department of Health Services. The rules and regulations shall establish the procedures to be used by law enforcement agencies in administering tests for the purposes of determining the concentrations of ethyl alcohol in a person’s blood. The “shall” wording of the statutes make clear that the procedures established by the rules are mandatory and that compliance constitutes a duty imposed upon the agencies and individual officers and civilian employees who administer, analyze, and report the test.” Pursuant to Health and Safety Code section 100715, supra., the Department of Health Services has promulgated Title 17.

IV. THE POLICE DEPARTMENT IS NOT LICENSED FOR PAS TESTING TO DETERMINE B.A.C.; IT DOES NOT FOLLOW THE REGULATIONS OF TITLE 17 OR COMPLY WITH HEALTH & SAFETY CODE §100700

Per §100700 of H&S Code, “The Department (of Health) shall adopt and publish regulations to be used in approving and governing the operation of laboratories engaged in the performance of…” chemical tests for B.A.C. Under §100715, the Legislature has decreed that “the testing of breath samples by or for law enforcement agencies for purposes of determining the concentration of ethyl alcohol…shall be performed in accordance with regulations adopted by the department. The regulations shall establish the procedures to be used by law enforcement agencies in administering breath tests for the purposes of determining the concentration of ethyl alcohol in a person’s blood.”

§100720 provides that “each laboratory in the state that performs the test referred to above, shall be licensed by the director.” Thereafter, the statutory scheme of the Health and Safety Code deals with licensing, fees, inspections by DOH, suspension of licence, etc. The police agencies are not licensed to maintain and calibrate breath testing devices, conduct training, or do periodic accuracy testing. Title 17, Section 1216(a) requires a laboratory to be licensed. Section 1217.4 states that a “[l]icense issued under these regulations shall not imply approval of anything carried out by a laboratory other than what is specified on the document.”

The substance of all these regulation is that breath testing can only be conducted by or under the direction of a laboratory licensed to use the particular breath testing machine used in the subject case. No Crime Laboratory is licensed to train on or use this machine. In letters from the Department of Health Services, the state agency in charge of breath testing stated that before a PAS device can be used for the purpose of determining a BAC, the laboratory must become licensed to use the device in a manner approved by the State. This has not been done by the police agency.

§1221 provides “breath alcohol analysis shall be performed in accordance with standards set forth in this article.”

“§1221.1 Authorized Procedures (a) Breath alcohol analysis shall be performed only with instruments and related accessories which meets the standards of performance set forth in these regulations. (b) Such instruments may be used for the analysis of breath samples in places other than licensed forensic alcohol laboratories and by persons other than forensic alcohol supervisors, forensic alcohol analysts, and forensic alcohol analyst trainees only if such places and persons are under the direct jurisdiction of a governmental agency or licensed forensic alcohol laboratory.” Again, the PAS devices and the police operators are not under the direct jurisdiction of a Crime Lab.

V. THE FAILURE OF THE POLICE DEPARTMENT TO BE LICENSED FOR BREATH TESTING FOR B.A.C. BY THE PAS DEVICE AND/OR HAVE APPROVED PROCEDURES FOR SOME MEANS THE PAS TEST RESULTS ARE INADMISSIBLE

In Coombs v. Pierce (1991), 1 Cal.App.4th 568, the court was faced with a similar situation. The Kern County Criminalistics laboratory was not licensed to use the IR 3000, the machine used to test the driver’s breath. In this case, the PAS machine is not approved or licensed to test breath for blood alcohol content. At the hearing on the petition for a writ of mandate in the Superior court, the respondent, the DMV, requested the court take judicial notice the IR 3000 was on the list of conforming products contained in the Federal Register. The trial court granted this motion and used the Federal Register as the basis for finding the test result was reliable and non-compliance with licensing requirements went only to the weight and no admissibility of the test result. The Appellate court reversed, finding that the court erred in taking judicial notice. The Appellate Court held “The court’s comments missed the mark not only because the evidence was inadmissible and lacked in probativeness: under these circumstances the failure of the Kern County laboratory to obtain licensure from the state for its Intoximeter 3000 did go to the issue of admissibility of the test result.” (Coombs v. Pierce, supra, at 580)

The bottom line is that licensed laboratories must be utilized for breath testing devices as well as approved procedure by the Department of Health for breath testing. The police cannot use devices that do not comply with the regulations and that do not have the minimum safeguards required by law. Williams did not address this issue. Coombs is controlling.

The machine was not used in compliance with the regulations based solely on the licensing issue. In addition, there is a failure to establish to follow approved procedures. The evidence must be excluded because there can be no foundation.

VI. THERE ARE MINIMUM STANDARDS OF PERFORMANCE AND PROCEDURE WHICH ARE NOT MET.

There is no compliance with §1215.1(b) in which there must be “trained laboratory personnel to measure” alcohol concentrations in breath. The procedure is not licensed per §1217 and there is no proof of passing the proficiency test of the Department of Health per §1217.7. There is no proof of training program approval as required under §1218. There is no proof of §1219 in which breath samples shall be collected and handled in a manner approved by the Department. There is no proof under §1221.2(a)(1) that the instrument qualifies with the standard of performance and/or proof that the machine is an approved instrument per §1221.3(a). There is no proof of “written descriptions of procedures”as required per §1220.2 entitled Standards of Procedure. There is no compliance with §1220.2(a)(2) and §1220.2(a)(3). There is no proof of compliance with the “quality control program” per §1220.3. There is no compliance with §1222 et seq. regarding records.

Title 17 §1219.3, provides:

“A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.”

PAS devices do not have a reliable method of collecting a sample of alveolar sample breath.

§1221.2 Standards of Performance. (a) Instruments for breath alcohol analysis shall meet the following standards of performance:

  1. The instrument and any related accessories shall be capable of the collection and analysis of breath specimens which are essentially alveolar in composition;
  2. The instrument shall be capable of analyzing a blank sample and of analyzing a suitable reference sample, such as air equilibrated with a reference solution of known alcohol content at a known temperature;
  3. The instrument shall be capable of the analysis of a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams % of the true value.
  4. The instrument shall be capable, in a controlled experiment, of breath alcohol analysis which results in a determination of a subject’s blood alcohol concentration which has correlation with his actual blood alcohol concentration as measured on a blood sample taken at approximately the same time as the breath sample.
  5. The instrument shall be capable of breath alcohol analysis which results in a concentration less than 0.01 grams of alcohol per 100 milliliters of blood when alcohol-free subjects are tested.

§1221.4 Standards of Procedure. (a) Procedures for breath alcohol analysis shall meet the following standards:

  1. For each person tested, breath alcohol analysis shall include analysis of two separate breath samples which result in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters;
  2. The accuracy of instruments shall be determined.
    1. …such determination of accuracy shall consist, at a minimum, of periodic analysis of a reference sample as described in §1221.2(a)(3) and which is provided by a forensic alcohol laboratory.
    2. Such analysis shall be performed by an operator as defined in §1221.4 (a) (5), and the results shall be used by a forensic alcohol laboratory to determine if the instrument continues to meet the standard of accuracy set forth in §1221.2 (a) (3).
    3. For the purposes of such determinations of accuracy, “periodic” means either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner.
  3. Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects:
    1. Theory of operation;
    2. Detailed procedure of operation;
    3. Practical experience;
    4. Precautionary checklist;
    5. Written and/or practical examination.
  4. Training in the procedures of breath alcohol analysis shall be under the supervision of persons who qualify as forensic alcohol supervisors, forensic alcohol analysts or forensic alcohol analyst trainees in a licensed forensic alcohol laboratory.
  5. An operator shall be a forensic alcohol supervisor, forensic alcohol analyst, forensic alcohol analyst trainee or a person who has completed successfully the training described under §1221.4 (a) (3)…
  6. Records shall be kept for each instrument to show the frequency of determination of accuracy and the identity of the person performing the determination of accuracy.
    1. Records shall be kept for each instrument at a licensed forensic alcohol laboratory showing compliance with this Section.

§1222.2 Breath Alcohol Analysis Records. (a) Each agency shall keep the following records for breath testing instruments…

  1. Records of instrument determinations of accuracy;
  2. Records of analyses performed, results and identities of the persons performing analyses;
  3. At the location of each instrument, the precautionary checklist to be used by operators of the instrument.

VII. THE POLICE AGENCY WILL FAIL TO ESTABLISH A FOUNDATION

A. THE PROSECUTION MAY HAVE INSUFFICIENT EVIDENCE OF THE MACHINE’S PROPER WORKING ORDER.

The prosecution must show that the breath machine is timely checked for accuracy and such periodic accuracy checks are “to be performed by certain persons employed by a forensic alcohol laboratory or by persons who have successfully completed training in using the instrument being tested and who are called upon to use a breath testing instrument in the performance of their duties” (Title 17, §1221.4(a)(2)(A), (a)(5). “Such training must include instruction in the theory of the device’s operation, detailed procedure of operation, practical experience, use of a precautionary checklist, and a written and/or practical examination.” (Id. and 1221.4(a)(2) subds. (A)(3)(A), (B), (C), (D), (E).) The results of the periodic accuracy checks are to be used by a forensic alcohol laboratory to determine if the instrument operates as required by Title 17.” (Id. subd. (1)(2)(A).)

In this case, the prosecution, at best, will have a police officer (not a qualified lab employee) attempt to lay a foundation regarding the accuracy of the machine. In addition to a lack of personal knowledge regarding the preparation of the calibration solution, the results of period accuracy checks are not forwarded or used by a forensic alcohol laboratory for determination of the device’s compliance with the Title 17’s accuracy standards as required by §1221.4 of Title 17. None of the accuracy tests were performed by employees of an alcohol forensic laboratory.

B. THE TEST WAS NOT ADMINISTERED PROPERLY.

Title 17 requires a breath sample be “collected only after the subject has been under continuous observation for at least 15 minutes prior to the test…” (Title 17 §1219.3). Furthermore, “all results are to be expressed in terms of alcohol concentration in blood” (Title 17, §1220.4(a)).

The officer may testify he believed the number provided by the PAS device was a measurement of blood alcohol level, but that testimony will be insufficient to establish whether the breath device in fact measured alcohol content in blood. Adams, supra, 59 Cal.App.3d at p. 561, reasoned that “Absent a controlling statute, the test results must be interpreted at the trial by an expert witness…” A police officer is not qualified to interpret the results as a measurement of alcohol content in defendant’s blood.

C. THE OPERATOR IS (MOST LIKELY) NOT COMPETENT AND QUALIFIED.

The training of a law enforcement officer for breath testing “must be under the supervision of qualified forensic alcohol supervisors in a licensed forensic laboratory.” (Title 17, §1215.1.) There cannot be “proper training” when the training and operation and procedures is from a police sergeant who is not a licensed forensic alcohol supervisor. Most likely, the operator’s training “did not include instruction on the theory of the device’s operation or an examination.” (Title 17, §1221.4, (a)(3)).

VIII. THE “PROPONENT” MUST ESTABLISH THE “PRELIMINARY FACT” THAT THE BREATH TEST RESULTS WERE ACCURATE AND RELIABLE (Evidence Code §403)

Under Evidence Code §403, the proponent must demonstrate a foundation that the breath test results are accurate and reliable prior to admitting the tests into evidence. The proponent has the burden of producing evidence as to the existence of the preliminary fact that the test results are accurate and reliable. Such proffered chemical test result is inadmissible unless there is sufficient evidence to demonstrate that the test was properly administered, the personnel involved in the test were qualified, and that the breath testing device was in proper working order and accurate. Evidence Code §405(a) requires the exclusion of “proffered evidence” where there is no showing the “preliminary fact” which is a pre-requisite to its admissibility.

In combination, §§401 through 405(a) of the Evidence Code is a legislative mandate of the long-standing rule that evidence is inadmissible, notwithstanding its relevance, where its authenticity requires a foundation which is not laid. Witkin, California Evidence (2d ed. 1966), §1083 [pages 1003-1004] and 1089 [pages 1009-1010]. The sum of the sections is an exception “provided by statute” to the general rule of admissibility of relevant evidence. §351 of the Evidence Code provides that all relevant evidence is admissible “except [where] otherwise provided by statute”. If there is “proffered evidence” for which a foundation is required, but not laid, it is inadmissible because it is “otherwise provided by statute” in §§401 and 405(a). People v. Adams, supra.

As stated by Justice Jefferson, Evidence Benchbook, Second Edition, Volume I, Section 24.6 dealing with Evidence Code §403(c):

“For such test results to be relevant and admissible, …, the preliminary facts to make proffered evidence of the test result relevant and admissible consists of properly functioning equipment, properly administered tests, and qualified operator. People v. Adams, supra, 59 Cal.App.3d 559 at 567.”

In People v. Kelley (1976) 17 Cal.3d 24, 30, the California Supreme Court stated that the reliability of scientific evidence must be demonstrated by the proponent of the evidence, i.e., the proponent “must demonstrate that correct scientific procedures were used in a particular case”. The Court in Adams, supra, 59 Cal.App.3d 559, 567, stated that:

“In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as to the foundational elements of properly functioning equipment, properly administered test, and qualified operator”. Adams, supra, 59 Cal.App.3d 559, 567. (Emphasis added).

“The passage of Proposition 8 (Cal. Const. Art. I § 28(d) did not abrogate generally accepted rules by which the reliability and thus the relevance of scientific evidence is determined. The reliability of scientific techniques is determined under the requirement of Evidence Code section 350, that ‘[n]o evidence is admissible except relevant evidence,’ a provision necessarily incorporate by reference into Evidence Code section 352, which is expressly preserved by section 28(d). (Citation)” California Courtroom Evidence, Haight and Cotchett 23-11.

IX. THE “SYSTEMATIC” FAILURE OF THE LAW ENFORCEMENT AGENCY TO ADVISE PER CVC §23157.5 REQUIRES THAT THE PAS TEST RESULT BE SUPPRESSED.

Every time in which a PAS is administered, the officer does not give the citizen an opportunity to provide a contemporaneous fluid sample. V.C. §23157.5, based upon Due Process of Law and Trombetta, requires the officer to advise the driver that the breath testing equipment does not retain a retestable sample. The intent of the legislature was that a driver who elects a breath test should have an opportunity to obtain a chemical test sample which he or she can test independently of the law enforcement test. Such a blood or urine test sample should be obtained contemporaneously or as close in time to the breath test as possible. In this PAS test, this is not done. For this reason alone, the PAS test result cannot be used as the equivalent of a chemical test for B.A.C. The defendant would be denied due process because he is not allowed to obtain a contemporaneous sample of a body fluid which he can have tested independently, a right he does have when the approved breath test is performed at the police station.

X. EVIDENCE OF A PAS TEST RESULT SHOULD BE EXCLUDED UNDER EVIDENCE CODE §352

Evidence Code § 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues, or of misleading the jury.

The court should exclude evidence of the PAS B.A.C. under Evidence Code § 352 for the following reasons:
A. UNDUE CONSUMPTION OF TIME: The production of PAS evidence will require an undue consumption of time. There are many issues which will have to be brought out under cross-examination and by affirmative evidence to show that the laboratory is not licensed, that proper procedures were not followed, the machine is not specific for alcohol, not reliable, etc.

The issue of machine reliability is critical to the defense. The exclusion of partition ratio evidence to explain the defense theory is a denial of the right to present evidence on a crucial issue violates due process and the right to a fair trial.

B. UNDUE PREJUDICE:

The values of the PAS test results are questionable at best given all the circumstances of this case. However, it is highly likely that the jury will give undue weight to this evidence notwithstanding the noncompliance with regulations, thus creating a substantial probability of undue prejudice.

C. CONFUSION OF THE ISSUES:

Does the presumption contained in CVC §§ 23152(b) and 23155 apply to the PAS test? The presumptions apply only to the “chemical test” which was administered post-arrest in compliance with the implied consent laws (and not to a “field sobriety test”). This position is supported by the terms of V.C. §23612(i) which requires the officer to advise the driver the PAS test does not satisfy the obligation to take a “chemical” test for “actual” B.A.C.

XI. IF THE TRIBUNAL ALLOWS THE PAS TEST TO BE ADMITTED, PARTITION RATIO (AND/OR ARTERIAL-VENOUS EVIDENCE) IS ADMISSIBLE

If PAS B.A.C. is allowed, such evidence opens the door for partition ratio evidence, in order to show why the PAS machine reading can be higher than the defendant’s true B.A.C. at the time of the PAS result. Partition ratio evidence in this case is relevant and necessary to show the PAS test will overstate the driver’s BAC at the time of the test because it was administered in the defendant’s absorptive phase. The defendant has a constitutional right to present his defense. Breath testing devices test only arterial blood. Measuring alcohol in arterial blood will produce a higher BAC than in venous blood unless it is established the driver’s arterial and venous blood were in equilibrium at the time of the test. The defendant should be allowed to present evidence of these facts.

Decisions regarding the admission of partition ratio evidence address that issue based on the approved and licensed breath test administered pursuant to the implied consent law and which conforms to the regulations and state law for breath testing. No case has ever addressed the issue of the admissibility of partition ratio evidence as to a PAS test. Most likely this is because most jurisdictions do not admit PAS evidence for alcohol concentration.

The rationale for the exclusion of partition ratio evidence applies only to the evidential test and is based on the statutory construction of Veh. Code § 23152. That rationale does not apply here. The only statutory reference to the PAS test is Veh. Code § 23162. This section was enacted after the modification of section 23152 concerning the basis for the ruling re ratio evidence. Had the legislature intended the PAS test result to be controlled by the same admissibility standards they could have said so; they did not.

XII. THE PAS TEST RESULT SHOULD BE EXCLUDED AS A DENIAL OF DUE PROCESS AND EQUAL PROTECTION

In Coniglio v. DMV, 39 Cal.App.4th 666 the court noted that protections of due process are triggered when the state acts to deprive a citizen of a predictable property right or to impose a criminal penalty. A person is afforded considerable protection when required to take an evidential chemical test because substantial compliance with Title 17 is and/or foundational requirements are required before a test result is admissible. To require less than this standard for the admissibility of a PAS test when the person agrees to take such a test for the purpose of assisting the officer is clearly a denial of due process.

The purpose of the licensing statutory scheme by the Department of Health is to put in place a procedure whereby an independent State agency determines the laboratory has the ability to properly administer, train and maintain procedures for breath testing. The laboratory is not competent to pass on its own competency. The court should not allow the admission of a PAS test result unless and until the laboratory which is charged with administration, training and maintenance for the device has become licensed to do so. To allow the PAS test result would subject the defendant to proof of a BAC by a device which has not been proven reliable in the hands of a person not trained and certified by the D.O.H.

XIII. CONCLUSION

The PAS test was approved by the legislature only as a screening test for the presence of alcohol as a field sobriety test to help the officer determine reasonable cause to arrest, not as an accurate measurement of blood alcohol levels. In order to admit the results, the proponent must demonstrate by expert testimony (not police officers) that the scientific community (e.g. crime lab expert) opines that the results are accurate and reliable. The proponent must demonstrate by a qualified expert that the particular apparatus was in proper working order, the test was properly administered, and that the operator was competent and qualified. A failure to establish a foundation of all three elements means there is a failure of accuracy and reliability and the test results are inadmissible according to the California Supreme Court.

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