You do not have to do PAS test or FST's unless you have already had a DUI . You still can be charged for 23152(a) VC - despite test results. Lately reckless driving charges have been issued by officers .
ANDREW ROBERTS CRIMINAL AND TRAFFIC TICKET DEFENSE ATTORNEY
The decision to arrest is up to law enforcement. If they believe you are under the influence and you refuse the field sobriety tests and the PAS test, it would seem they don't have much to base that opinion on though. There are pros and cons to either decision. If you choose to cooperate and they don't believe you are impaired they may let you go. On the other hand, they may not. If you do poorly or marginal on field sobriety tests, you can bet that the officer will note that in the reports. The PAS number will also be recorded. I'm not a huge fan of field sobriety tests or the PAS device. Your performance on field sobriety tests is being interpreted by law enforcement. It's my belief that if an officer makes the decision to arrest, the field sobriety tests will be written in a way to support that decision. The PAS device is not as reliable as the evidentiary tests and under certain circumstances can read unfairly. If you refuse the field sobriety tests and PAS test and charges are filed you can be certain the prosecution will attempt to use your refusal as consciousness of guilt. With a good DUI attorney, you may be able to prevent them from doing so at trial. On the other hand, if you are cooperative the officer has the ability to leave you where you are or have you call a friend to pick you up. There isn't a template you can use to make the correct decision in every case. Look forward by contacting two or three local DUI attorneys and see how to move forward. You'll find some great ones in your area if you check AVVO and the California DUI Lawyers Association websites.
You are deemed "not under the influence" when under .05% by law. Refuse to do field sobriety testing and PAS tests unless you are required because you are under 21 or on probation for a DUI conviction.
My colleagues are correct. If you are over 21 and are not on probation for a DUI, you can refuse the field sobriety tests and PAS. If you're a .05, you could still be charged with 23152(a) but the prosecution would probably have a tough case on impairment.
How about not getting pulled over with .05 or higher BAC to begin with.
If it's too late or too unrealistic to ask that, you can still be prosecuted under VC23152(a) which requires the prosecution prove beyond a reasonable doubt that your ability to operate a motor vehicle was so impaired (by alcohol and or drugs) that you could not operate the motor vehicle with the caution and care of a sober person under similar circumstances. Lack of FSTs and a PAS will make the prosecutor's case that much more difficult to prove.
Question…are you over 21?
You should refuse FSTs….tests are designed to fail.
Refuse PAS….machine too inaccurate.
You may be arrested if the officer forms an opinion that you are under the influence. If the prosecution issues the case…you would be giving your attorney some good facts.
This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply
There is almost nothing to be gained by taking the field sobriety tests and PAS , but there is a lot to lose.
The truth is that if you smell like alcohol, the police are likely going to form the opinion that you have been driving drunk. No matter how you behave, they will view you through the eyes of suspicion.
And guess what? Almost no one looks sober doing the sobriety tests.
If you refuse the tests and your BAC is a 0.05, the DA is likely to drop the charges.
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