The fastest way to contact Artz & Sturm: ‪(310) 400-6356‬


Exclude P.A.S. Test Results Due to Violation of Due Process

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


The defendant submitted to a search of his/her body by way of a PAS test at the request of the officer prior to his/her arrest. The defendant did not knowingly and intelligently waive his/her right to Due Process rights (includes right to collect evidence) due to the submission to a P.A.S. test.

The process due this defendant, by the same enactment which granted the liberty/property interest in the first instance, is that he/she had a right to choose a test to determine the “alcoholic content of his blood…” [V.C. §§23612(a)(1)(A) and 23612(a)(2)(A)] and, if the chemical test chosen was breath, to have the Due Process right to obtain a back-up test of blood or urine to protect the due process right of preservation of evidence. This statutory right, a choice of blood or breath, was never offered re the P.A.S. test as well as the due process requirement of the opportunity to preserve evidence.

“The denial of an opportunity to procure one’s own evidence on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense, and is a denial of due process of law.” Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 361 (emphasis added); see also In re Newbern (1959) 175 Cal.App.2d 862, 864-865.

The due process arguments are supported in People v. Superior Court (Scott) (1980) 112 Cal.App.3d 602, 605; People v, O’Hearn (1983) 142 Cal.App.3d 566, 570-571; People v. Hitch (1974) 12 Cal.3d 641, 652-653 (and its state due process dimension retained by Raven v. Deukmejian (1990) 52 Cal.3d 336, 352-355); and, inter multa alia, People v. Johnson (1976) 62 Cal.App.3d Supp. 1, 10-11. Due Process was implicated by the officer’s purposeful noncollection of necessary evidence, a “process” made “due” by statute.

The prosecution has the burden to demonstrate there was sufficient advice as well as a knowing waiver of a citizen’s rights. In this case, there was no warning that the police would use the P.A.S. test to determine B.A.C. There also was no advisement of the right to a choice of test to determine B.A.C. [V.C. §23612(a)]. There was no advisement of the Due Process right of a sample to preserve evidence of B.A.C. as required by Hitch and Trombetta.


As our Supreme Court has noted, but in a different setting, “where the right to due process has attached, we must inquire into what process is due…” People v. Hansel (1992) 1 Cal.4th 1211, 1219.1 The “process” “due” herein is that where a person is administered a breath test, it is a mandatory “process” that he be advised that he has a right to a back-up test of blood or urine because a breath test does not provide a retestable sample. This “right to evidence” is based upon the Hitch decision and Due Process of Law. In People v. Hitch, (1974) 12 Cal.3d 641, the California Supreme Court held that since it was scientifically possible to capture a breath sample (by indium tubes) at the same time as the analysis of breath for blood alcohol content by the cops, which could later be re-tested by the defense, the failure to do so violated Due Process. The decision was disapproved by the U.S. Supreme Court. However, the highest court emphasized the due process concern of maintaining evidence and/or securing a knowing waiver of same, which led to the so called “Trombetta” advisement, one of the issues herein per V.C. §23614 and due process of law.

Where a sample-testing legislative scheme has been established by state law in order to avoid due process concerns and the police fail to follow it, as occurred here, it is a violation of due process. People v. Superior Court (Scott) (1980) 112 Cal.App.3d 602, 605; see also People v. O’Hearn (1983) 142 Cal.App.3d 566, 570-571 [dismissal appropriate where evidence
preservation scheme violated] and People v. Hitch (1974) 12 Cal.3d 641, 652-653. Where police conduct prevents a defendant from obtaining his own chemical evidence (as manifestly occurred here because no sample to be preserved offered), due process is violated, and exclusion of evidence is the appropriate remedy. People v. Johnson (1976) 62 Cal.App.3d Supp. 1 10-11. This is a simple California state due process motion to estop the government from proceeding where the defendant’s rights have been violated. The People should not focus on federal due process cases because California due process remains a viable and enforceable doctrine, providing greater protection than federal due process. Raven v. Deukmejian (1990) 52 Cal.3d 336, 352-355. Hitch, of course, is a state due process case on that particular issue. See, e.g., Hitch at 653, fn. 7, citing In re Newbern (1959) 175 Cal.App.2d 862; then see Id. at 864-865.


It is hornbook law that once government confers an interest on People to enjoy (whether or not it had to confer that interest in the first instance), it cannot then pull back or restrict that
interest without providing due process. L.H. Tribe, American Constitutional Law 678- (2d ed. 1988). Conservative commentators also recognize the distinction between “Substantive due process” (a contradiction in terms) and “Procedural due process” (a semantical redundancy), and they note that “due process” contemplates protections of granted liberty interests unless there are
“procedures” in place for their deprivation which are followed. J.H. Ely, Democracy and Distrust; A Theory of Judicial Review 18-21 (1980).

It is well-established that the “due process” clause applies to the state’s infringement of licensed “privileges.” Bell v. Burson (1971) 402 U.S. 535, 539 (91 S.Ct. 1586, —]; Mackey v. Montrym (1979) 443 U.S. 1, 10, fn. 7 [99 S.Ct. 2612, —]; see also Barry v. Barchi (1979) 443, U.S. 55, 64 [99 S.Ct. 2642] 61 L.Ed.2d 365; see also Board of Education v. Loudermill (1985) 470 U.S. 532, 541 [public employment protected by a “process” which is “due”], Goldberg v. Kelly (1970) 397 U.S254, 267 [welfare benefits protected by a “process” which is”due”] ; Perry v. Sinderman (1972) 408 U.S. 593, 602 (junior college teaching contract non-renewal protected by a “process” which is “due”]; Memphis Light and Gas v. Craft (1978) 436 U.S. 1, 9-12 [public utilities customers’ service protected by “process” which is “due”].

“We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Vitek v. Jones (1980) 445 U.S. 480, 488. See also Bell, and Mackey, supra [state licensing/ unlicensing scheme protected by federal constitution]. (But, of course, state due process is a viable doctrine of protections anyway; see Raven, infra.)

So, again, it is uncontroversial that where one has a protection from government which he enjoys, the protection cannot be avoided without violating due process. The question is “what process is due.” People v. Hansel (1992) 1 Cal.4th 1211, 1219.

What is at issue here is the same thing at issue in Bell and in Mackey and in, inter alia, Barchi, the right to continue enjoying a privilege granted an individual by his government, the privilege to collect evidence [in order to prepare a defense to critical evidence]. The arresting officer arbitrarily and unilaterally, and hence illegally, deprived the defendant of that right if the court allows the PAS test result to be used for B.A.C.. There was no voluntary and understanding waiver of said right to evidence.

In drunk driving litigation, we have slipped into a MADD, MADD, MADD, WORLD, and we need to return to constitutional and evidentiary propriety, lest the promise that we are governed by law devolve into merely a quaint and nostalgic anachronism. That would be the first step down the slippery slope toward anarchy.2

The defendant had a right to certain protections; that right was arbitrarily denied him by the same government which wants to convict him and suspend his license, based on evidence surrounding the right the police denied him. The state’s PAS test for blood alcohol content should be excluded.3


The officer, by statute, V.C. §23612(i) was required to ADVISE the driver of the following admonition, which, if given,4 explained that the P.A.S. test was only a preliminary alcohol screening test to be used for determining probable cause and the P.A.S. was not a test to determine the person’s blood alcohol content:

“I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. This is not an implied consent test. If arrested, you will be required to give a sample of your blood, breath, or urine for the purpose of determining the actual alcoholic (and/or drug content) of your blood.”

The prosecution now wants to admit B.A.C. from the P.A.S. test, but the officer misled the citizen when securing the evidence. If the officer advised as required by V.C. §23612(i) [that the purpose of the PAS screening test was to assist the officer in determining whether the driver was under the influence of alcohol and the P.A.S. test was not the test for the amount of
alcohol in the blood] to admit the P.A.S. result would violate due process. If the officer did not advise correctly, all the more should the evidence be excluded.


The court are under a duty to indulge every reasonable presumption against waiver of fundamental constitutional rights. Due Process and the right to collect evidence is a fundamental right. The courts are under the duty “to indulge every reasonable presumption against waiver” of fundamental constitutional rights and defined “waiver” as an intentional relinquishment or abandonment of a known right or privilege” (Johnson v. Zerbest (1938) 304 U.S. 458, 464.) The court shall “not presume acquiescence in loss of fundamental rights, “Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307.

One cannot waive his Due Process right unless fully informed. Federal law is controlling over the definition of a constitutional right (e.g. Due Process). As stated in Boykin v. Alabama, 380 U.S. 415, 422, “the question of an effective waiver of a federal constitutional right in a state criminal proceeding is governed by federal standards.” If the advisement of the due process right is not full and complete, the waiver of the right is not knowing, intelligent, and voluntary.


The implied consent law of California creates a liberty interest of a choice of tests (blood or breath) to determine B.A.C. that is entitled to the procedural due process protection of the Fourteenth Amendment. The policy of the arresting police officer deprives this citizen of due process, i.e. the choice of tests for B.A.C. and the right to a preservable sample if there is a breath test for B.A.C.


The PAS test result violates Due Process and must be excluded.

1 Credit is given to Captain Motion, a Deputy Public Defender in Riverside for Points II and III.

2 Personal grief should not drive the criminal justice system to criminal injustice.<
3 There could be special jury instruction given to address the police officer’s violation of the law, and its impact on the defendant’s inability to collect the best evidence of his innocence. That instruction should read something like: “The officer violated the law when he failed to inform the defendant that he had a right to a back-up test of blood or urine. It is well understood by the police that a breath test does not collect a sample which can be tested by someone accused of drunk driving, and it is also well understood that a breath test is less reliable than a blood test. The failure of the officer to follow the law on this matter may be considered by you in determining the accuracy of the test results introduced in this matter as well as for determining the credibility of this officer’s testimony.”

4 Many officers say something like: “Take the test or you’re going to jail” with no further advice.