Dean Johnson Explains Why Many California DUI Suspects May See Their Cases Dismissed


Many people who are, or have been, charged with Driving Under the Influence (also known as “drunk driving,” “DUI,” or “DWI”) may be able to get their charges reduced or see their cases dismissed altogether.

The District Attorney in Santa Clara, California, which includes San Jose, Palo Alto, Mountain View, Los Gatos and other communities, has announced that the mini breath test, called a “preliminary alcohol screening device” or “PAS test,” that was administered to drivers soon after they were stopped by police may have been defective.

The PAS test is a hand-held device that police use as a “field sobriety test” to determine whether to arrest someone who is suspected of drunk driving. The PAS test is administered at the scene of the arrest, and so is the first, and sometimes the best, measure of a person’s alcohol level at the time of driving.

The PAS test is not the same as what we commonly call a “breathalyzer.” The “breathalyzer” or “intoxilyzer” is a much more elaborate machine. The breathalyzer is administered after the arrest when the suspect is taken to the police station or jail.

As I have said many times on radio and TV the science behind the breathalyzer is very shaky, and our office has been able to win many, many breathalyzer cases. But that is a story for another time.

Arrestees have the right to refuse the PAS test and to police are supposed to advise the arrestee of that right. Suspects do not have the right to refuse a breathalyzer. When at the station or jail, the suspect must take a breath or blood test (even if they have previously taken the PAS test). Refusal to take the blood or breath test is called a “refusal.” A refusal to take the test can be used against the suspect at trial. It also carries a longer jail term and a longer license suspension with the DMV.

The Santa Clara DA learned recently from Alco-Sensor, the manufacturer of the most popular PAS test, that their latest model, the Alco-Sensor V, is defective and is being recalled.

The DA is now notifying attorneys who represented defendants in cases involving the Alco-Sensor V of the problem. It is unknown what the DA will offer in these cases. However, the PAS test is often a critical piece of evidence in close cases. Without that evidence, the DA’s case could become much weaker and the DA may offer a reduced charge (sometimes called a “wet reckless”) or may dismiss the case altogether. (The wet reckless is often a good deal because it carries no jail, requires only a small fine and does not lead to suspension of the driver’s license by the DMV.)

The DA also said that the defective Alco-Sensor V’s were used by the Palo Alto Police. The DA’s Palo Alto office is looking into an unknown number of cases there.

Most Police officers use the older Alco-Sensor IV, which has not experienced any problems (that we know of).

Ventura and Los Angeles Counties have also experienced problems with the “erratic” performance of the Alco-Sensor V.

People who were recently charged with a DUI in Santa Clara County (or other counties for that matter) should contact their attorneys to determine whether their case was an Alco-Sensor V case, and, if so, what can be done about the case. If the DA doesn’t give some relief, defendants should consider a motion to withdraw the plea, motion for a new trial, appeal, habeas corpus or other remedies, depending upon the facts and status of your case.

People who have been charged with a DUI in Ventura, Los Angeles, and other Counties should do likewise