Thursday, February 14, 2008

Limited Jury Instruction re: questionable California DUI PAS test

California DUI attorney case

Filed 2/14/08 P. v. Vargas CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

ERNESTO LUIS VARGAS,

Defendant and Appellant.
A111248
(Contra Costa County

Super. Ct. No. 050414-2)


A jury found Ernesto Luis Vargas guilty of driving under the influence (count one–Veh. Code, § 23152, subd. (a)) and with a blood alcohol level of 0.08 or more (count two–Veh. Code, § 23152, subd. (b)), and the court, in bifurcated trial on allegations of three prior such convictions (Veh. Code, § 23550), found them true for both counts. Granted probation with execution of a prison term suspended, Vargas claims jury-selection error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), plus several errors relating to results of a preliminary alcohol screening (PAS) test. We affirm the judgment.

Background

We detail the pertinent trial evidence in the issue discussions that follow. We need only state here that both counts arise from a February 22, 2005 traffic stop where officers saw Vargas driving a Honda unsafely, succeeded in pulling him over after some resistance, noticed from his demeanor that he seemed to have been drinking, and used a PAS breath test that confirmed a blood alcohol level of 0.186. The PAS test was used in lieu of a balancing test because it seemed, from blood on Vargas’s face and hands and an earlier report of a fight, that he may have been involved in an assault. Vargas was arrested, and intoxilyzer breath tests administered with a “Draeger machine” at the Pittsburg Police Department showed blood alcohol levels of 0.16 and 0.17.

Discussion

I. Batson/Wheeler

Vargas claims abuse of discretion in a ruling on a Batson/Wheeler objection he raised when the prosecutor used a peremptory challenge against a man who was the only Black potential juror on the first panel. The court found no prima facie case and, having so ruled, allowed the prosecutor to state reasons for the challenge.

Circumstances. The juror was L.H., and he had checked the “yes” box on his questionnaire where it asked: “Do you have moral, religious, or other principles which would make it difficult to determine whether someone is guilty or not guilty of a crime?” Prosecutor William Davis asked L.H. about this in detail during general voir dire before anyone was seated in the jury box. After first asking L.H. about his work for Federal Express and service in the United States Army, Davis initiated this exchange:

“And you checked yes regarding moral, religious or other principles which might make it difficult to determine someone’s guilt or innocence. What were you thinking regarding that answer?

“[L.H.]: I was thinking that each individual needs to have wisdom in the things that they do each day. You know, it doesn’t hinder anyone’s opinion of what someone else has done that they have to answer.

“Mr. Davis: Okay. The question I have for you, I guess, answer to?

“[L.H.]: Answer to God at the time of judgment. You going to stand before the throne and He going to ask you do you take accountability for your life and the things that you have done in your life and the things you didn’t do in your life.

“Mr. Davis: Absolutely. Question though is, is that for later, the ultimate judgment, or do you feel like you’re capable of being a judge now, a fact-finder?

“[L.H.]: No, because I don’t go around judging people for what they do. It’s not my job to judge each individual. My job is to judge myself and take accountability for myself.

“Mr. Davis: Okay. The issue, though, if you’re chosen to be a juror, you‘re going to be asked to judge several things, the credibility of witnesses, the weight to be given to evidence, and, ultimately, whether or not guilt beyond a reasonable doubt has been proven regarding Mr. Vargas.

“Would your personal philosophies or—more or less interfere with your ability to do that?

“[L.H.]: What you’re asking me, I’ll be presented the facts and make a moral or wisdom judgment of the facts that gonna be presented, yes, I can do that.

“Mr. Davis: Okay. You’re willing to do that?

“[L.H.]: But not to say—well, to judge him straight out, no.

“Mr. Davis: I’m not asking you to judge him now. He’s presumed innocent until proven guilty.

“[L.H.]: Right.

“Mr. Davis: But when you hear the evidence and you’ve discussed it with the other jurors, are you willing to come to a decision?

“[L.H.]: Yes.

“Mr. Davis: All right. Thank you.”

The prosecutor exercised his sixth peremptory strike against L.H., at the first opportunity after L.H. entered the jury box.

Hearing and ruling. A hearing outside the jury’s presence established that L.H. was the only Black on a 42-person panel,1 that Vargas was Hispanic (described by his counsel as “Latina” [sic]), and that the court had no information that any witness would be Black (African-American). The court found no prima facie case in the circumstances, noting additionally that Davis’s other challenges were against those of “different ethnic backgrounds”) and that his questioning of L.H. was not perfunctory. The court stressed that it was not finding a prima facie case but added, “I will allow Mr. Davis to put on the record what excuse or statement he would like to make in the event that a prima facie had been found.”

Davis elaborated: “Yes, Your Honor, the primary concern that I have regarding [L.H.] was his questionnaire. He checked yes regarding the question do you have moral, religious, or other principles which would make it difficult to determine whether someone is guilty or not guilty. And when questioned about that, he went into some detail about the ultimate judgment being in the Almighty’s hands, and while at the end of the day, he seemed to indicate that he could weigh the evidence and be a juror, I was left with reservations myself. [¶] And it wasn’t just his answers. There was also something about the way he was answering it, may just be his style of talking, very low, almost barely with opening his mouth. And I took that as somewhat tense—indications of tension in his responses, and that also weighed on my mind as having reservations about his ability to be impartial.”

The court adhered to its initial ruling of no prima facie case, making no comment on the reasons and closing, “I think I’ve said as much as I’m going to say.”

Analysis. Race-based use of peremptory strikes violates the federal constitutional guaranty of equal protection of the law, as held in Batson, supra, 476 U.S. 79, and California’s constitutional right to a jury drawn from a representative cross-section of the community, as held in Wheeler, supra, 22 Cal.3d 258. (People v. Cornwell (2005) 37 Cal.4th 50, 66.) “Blacks . . . are a cognizable group for purposes of both Wheeler [citation] and Batson [citation]” (People v. Clair (1992) 2 Cal.4th 629, 652), and the procedure for objection is this: First, the defendant must make out a prima facie case by showing that the totality of relevant facts gives rise to an inference of discriminatory purpose. Second, once that burden is met, the “ ‘ “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.]” (People v. Cornwell, supra, 37 Cal.4th at pp. 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168.)

Here, the court found no prima facie case to shift the burden to the prosecutor to state reasons, and the fact that the court afterward allowed the prosecutor to state reasons nevertheless (see, e.g., People v. Boyette (2002) 29 Cal.4th 381, 421) “did not moot the question of whether defendant had established a prima facie showing. [Citations.]” (Id. at p. 422.) We review a no-prima-facie-showing determination deferentially (id. at p. 423), and find it supported.

Vargas stresses that the prosecutor struck “all” members of a cognizable group, and of course, that circumstance, while not conclusive, may establish a prima facie case, “especially if the defendant belongs to the same group” (People v. Hoyos (2007) 41 Cal.4th 872, 901). Here, however, there was only one group member in the entire panel, and nothing further fuels an inference of discrimination.2 “Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, . . . to make a prima facie case after the excusal of only one or two members of a group is very difficult.” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) “ ‘Even the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’ [Citation.]” (Id. at p. 598.) “To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion ‘is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.’ [Citation.] But in drawing an inference of discrimination from the fact one party has excused ‘most or all’ members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges.” (Id. at p. 598, fn. 3.)

The trial court also saw that Vargas was not a member of the same group as L.H., and this further supported the ruling. “ ‘[T]he defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 597.) Vargas was not a member of the cognizable group, and there was no “victim” in this DUI case whose group membership might bear on discriminatory intent. The court even stated, without dispute, that it knew of no witnesses who shared L.H.’s group membership.

Next, the prosecutor’s questioning of L.H. was not “unusually desultory” so as to fuel suspicion of race-based discrimination (People v. Bell, supra, 40 Cal.4th at p. 599); in fact, the questioning was unusually thorough.

We affirm a no-prima-facie-case ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged a juror (People v. Hoyos, supra, 41 Cal.4th at p. 900; People v. Yeoman (2003) 31 Cal.4th 93, 116), and L.H.’s responses about his moral, religious or other compunctions suggest ample grounds for doubt about his ability to serve as a fair arbiter of guilt or innocence. In the end, L.H. did differentiate between hearing evidence to decide factual questions on charged crimes, and religious convictions against “judging” persons based on their acts—a task that he saw as God’s, not his own. It took numerous tries to draw that distinction, however, and a party could reasonably wonder why L.H. traveled that path in the first place, when the questionnaire asked nothing about judging people, only about “principles which would make it difficult to determine whether someone is guilty or not guilty of a crime[.]” L.H.’s responses reasonably raised doubts whether he could keep those ideas separate during deliberations. Even in assuring the prosecutor that he could decide the facts, he referred confusingly to making “a moral or wisdom judgment of the facts . . . .”

Vargas invokes the federal high court decision in Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), where a majority undertook a comparative juror analysis, at odds with our state high court’s rule against using such an analysis for the first time on appeal (People v. Johnson (2005) 30 Cal.4th 1302, 1306, 1318-1325). Vargas argues that even where a trial court has found no prima facie case, we must undertake a comparative juror analysis, but he ignores binding state Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) that limits such an inquiry, even under Miller-El, to cases where a trial court has reached a third-stage Batson/Wheeler inquiry, evaluating a prosecutor’s stated reasons after finding a prima facie case. (People v. Bell, supra, 40 Cal.4th at pp. 600-601; People v. Gray (2005) 37 Cal.4th 168, 189.) The court never reached that stage here.

Even if we were free to disregard that precedent, however, it would gain Vargas nothing. He points to only one juror, a Ms. C.T., who was not excused after answering “yes” to the same questionnaire item as L.H. Under questioning by the prosecutor, C.T. explained that she “wouldn’t want to even be in a jury room with a child molester” and was also anxious about spending time away from her job. She said, “No,” when asked if her questionnaire answer had anything to do with sitting “in judgment of someone else.” Thus L.H.’s and C.T.’s responses were not at all similar.

Vargas criticizes the prosecutor’s stated reasons, placed on the record after the court had found no prima facie case, calling those reasons “gratuitous” and “pretextual.” We reject his criticisms on five grounds. First, those reasons were never passed upon or evaluated for good faith by the trial court, leaving us no third-step ruling to review. Second, we have not ourselves found that the record compelled reaching that step. Third, it would be unfair to call the prosecutor’s remarks gratuitous when they were invited by the court, to protect the record. Fourth, the remarks essentially reinforce the same primary concern we identified objectively—concern about the questionnaire answer. Fifth, in the end, there is no basis in this record for Vargas’s alarmist conclusion that the prosecutor “categorized [J.H.] as a shiftless religious zealot, which rings of an antebellum stereotype relating to slaves.”

The ruling is supported, and we reject Vargas’s several intimations that the court misconstrued seriously, or at all, its proper role in ruling on a Batson/Wheeler challenge. No abuse of discretion is shown.

II. PAS Test Results

Vargas’s three final contentions concern evidentiary use of the numeric result of the PAS test administered at the stop scene. He unsuccessfully opposed this use at trial and claims on appeal that the results (1) were inadmissible because unreliable, in part for noncompliance with regulatory mandates contained in title 17 of the California Code of Regulations (hereafter title 17), (2) were inadmissible for failure to comply fully with admonition standards in Vehicle Code section 23612,3 and (3) were misused by the jury because a written version of an instruction on them was incomplete.

The matter first arose in a pretrial defense motion to exclude the PAS results as unreliable. The court deferred ruling then but ordered that the results not be mentioned until there was a “402 hearing” (Evid. Code, § 402) on their admissibility. That hearing later took place outside the jury’s presence and featured testimony by Officer Charles Blazer, whose duties included calibrating, instruction on and maintenance of two PAS devices used by the Pittsburg Police Department, and Officer David Cranston, who administered the PAS test to Vargas in this case. The court found deficiencies in compliance with title 17 and the statutory admonition, but ruled the results admissible as sufficiently reliable despite those shortcomings. Further discussion and testimony refined the ruling but without a change in admissibility.

Cranston was allowed to testify that he felt that the full circumstances, including Vargas’s driving, demeanor and appearance, and the PAS test result of 0.186, gave him probable cause to arrest. The jury also heard testimony about various shortcomings in the regulatory regime and admonition. The admonition, for example, had advised Vargas of his right to refuse to take the PAS test but, rather than telling him that it would not substitute for his obligation to take a blood, breath or urine test (fn. 3, ante), told him he would have to take another test at the station if he refused. For the Pittsburg Police Department’s PAS devices, as another example, the devices had been calibrated just three weeks before one of them was used here, but the calibration beforehand had not been as frequent as title 17 required, and the Pittsburg Police Department generally did not follow the manufacturer’s manual. Finally, for the test given in this case, deficiencies included taking just one reading rather than two, Vargas not having been watched continuously for 15 minutes beforehand (to guard against false results from mouth versus alveolar alcohol), Officer Cranston lacking optimum training on using the device or its theoretical underpinnings, and his failure to use a precautionary checklist or notate which of the department’s two devices he used.

After discussions with counsel, the court fashioned an instruction, consistent with case law holding that deficiencies in the admonition or title 17 requisites do not render PAS test results inadmissible as such (People v. Williams (2002) 28 Cal.4th 408; People v. Wilson (2003) 114 Cal.App.4th 953; People v. Bury (1996) 41 Cal.App.4th 1194), that instructed jurors to consider any such deficiencies in deciding how much weight to give the results. Vargas does not challenge the instruction as orally delivered, but claims prejudice from the inadvertent omission of an introductory portion in a written version the jury was provided for deliberations.4

In jury argument, defense counsel urged reasonable doubt whether Vargas was intoxicated by attributing his odd driving and demeanor to head trauma and relying on deficiencies in the administration of the PAS test and the device’s maintenance. The jury sent two notes during deliberations. The first asked for all evidence, and the physical evidence was furnished to them. The second note, delivered shortly before the verdicts, inquired: “Was the defendant legally arrested based on the ‘PAS’ test (only one given) and the observations of the police officers without any other tests conducted?” With the consent of counsel, the court wrote in response, “There is no issue for you to resolve regarding the legality of the arrest.”

A. Admissibility

Vargas’s admissibility arguments, once again, are that the PAS results should have been excluded because (1) they were unreliable, apart from noncompliance with title 17, and (2) admonition deficiencies independently demanded their exclusion. Case law since the trial reinforces then extant authority that title 17 noncompliance goes to the weight, not admissibility, of the results, that they are admissible on showings of a reliable device, proper administration and competent operator, and that a trial court’s admissibility ruling is reviewed deferentially, for abuse of discretion. (Roze v. Department of Motor Vehicles (2006) 141 Cal.App.4th 1176, 1186-1190 (Roze); People v. Hallquist (2005) 133 Cal.App.4th 291, 297.) The law also continues to provide Vargas with no direct support for his notion that a “proper remedy” for an improper admonition under Vehicle Code section 23612, subdivision (i) (fn. 3, ante) is exclusion. The predecessor statute was held not to require exclusion of the results. (People v. Bury, supra, 41 Cal.App.4th at pp. 1205-1206; [former Veh. Code, § 23157, subd. (h)].) Moreover, the admonition is legislatively designed to allow an in-field collection of evanescent breath evidence while ensuring lack of confusion about a suspect’s further duty to submit to a more accurate and reliable test, under more controlled circumstances. (Roze, at p. 1189.) Here, where Vargas was cooperative in taking a later test at the station, it is difficult to see what legislative policy would be furthered by exclusion, and while a court-crafted instruction did invite jurors here to use any admonition deficiency as a factor in weighing the test result (fn. 4, ante), we frankly see no logical connection between a defective admonition and the test’s reliability.

Nevertheless, the short answer is that Vargas has not demonstrated reversible error, even by the most stringent standard of harmless beyond a reasonable doubt, even if we assume for sake of argument that the PAS results should have been excluded from evidence. The remaining evidence showed, from Vargas’s demeanor and the Draeger machine intoxilyzer test results subsequently obtained, that he was significantly alcohol impaired. Vargas points to the PAS result of 0.186 as harming him by corroborating the intoxilyzer test results of 0.17 and 0.16 and weakening a “reliability defense,” but just the opposite appears. Defense counsel was able to focus on deficiencies in the PAS test to urge doubt about the overall intoxication conclusion. Without the PAS results, we see nothing by which the defense could have impeached the reliability of the intoxilyzer (Draeger machine) results. The evidence shows that the Draeger machine results were obtained in compliance with title 17, including the double tests, observation period, calibration, administration, use of a checklist, and training. Indeed, trial counsel made no argument that the intoxilyzer tests were obtained or administered deficiently, and appellate counsel points to no such evidence now.

Also, expert testimony extrapolating Vargas’s intoxication level from his height and weight used the unimpeached intoxilyzer results, and the police testimony about his driving, unsteady gait, demeanor, strongly alcohol-tinged breath, sweaty face, and slurred speech was never directly contradicted, and would have been completely uncontradicted without the PAS-test evidence and related controversies. Argument about his demeanor being attributable to physical trauma would have been the same without the PAS test results.

Any error in admitting the PAS test results was harmless.

B. Instruction

The misinstruction claim requires a slightly different analysis, for prejudice in this context necessarily assumes properly admitted evidence. The problem, to reiterate, is that the written instruction sent into the jury room had an omitted first page, so that the written version was incomplete (fn. 4, ante). We cannot tell whether jurors discovered this. On one hand, lack of inquiry about an obviously incomplete instruction that began midsentence suggests that they did not use the writing, in which case there was absolutely no prejudice. On the other hand, we may infer resort to it from the jury note asking, “Was the defendant legally arrested based on the ‘PAS’ test (only one given) and the observations of the police officers without any other tests conducted?”

Assuming some resort to the written instruction, however, we see no prejudice, and Vargas’s briefing is murky, at best, on how he was harmed by the omitted first few lines. They were largely introductory, reminding jurors that they had heard evidence of the PAS test and explaining that officers may use the results as a field sobriety test to investigate reasonable cause to arrest for driving under the influence. This was already evident from the uncontradicted testimony from Cranston about having advised Vargas about wanting to use the PAS to “confirm what his sobriety was” and whether “he was impaired or not impaired.” Thus, that part of the omission was clearly harmless. The jury’s note asking whether Vargas was “legally arrested based on the ‘PAS’ test,” without other field tests, shows curiosity whether they had to decide that question, but the court advised them, without dispute on this appeal, that “the legality of the arrest” was not something for them “to resolve.”

The only other omission, then, was this italicized portion of one sentence: “If the officer decides to use the PAS test, he shall advise the person that he is requesting him to take a PAS test to assist the officer in determining if he is under the influence of alcohol. The person’s obligation to submit to a blood, breath or urine test as required by law for the purpose of detecting the alcoholic content of the person’s blood, is not satisfied by the person submitting to a PAS test. The officer shall advise the person of that fact and of the person’s right to refuse to take the PAS test. [¶] In evaluating the weight you choose to give to the PAS test, you may consider whether or not the evidence shows that the officer gave the admonitions so stated above and also whether or not: [¶] The PAS testing device was in proper working order; [¶] The PAS test was properly administered; and [¶] The operator was competent and qualified.” Nothing in the omitted portion spoke to jurors’ task of assessing the weight of the results by considering title 17 deficiencies (fn. 4, ante). The chopped first sentence explicitly stated a duty to advise, but the rest of the paragraph conveyed the duty implicitly. Also, the duty was implicitly conveyed in Cranston’s trial testimony, without any dispute about his duty.

Perhaps the root problem for Vargas in demonstrating prejudice here, where he does not dispute the correctness of the court’s instruction, is the question: What was the jury supposed to do with the fact that the advisement may have been deficient? This is a conundrum under the instruction, which says that lack of proper advisement may affect the “weight” jurors give to the PAS test results, but provides no guidance on how this is so. Reliability, the instruction goes on to explain, depends on whether: (1) the device was in proper working order; (2) the test was administered properly; and (3) the operator was qualified and competent. Those factors logically bear on the reliability of results (People v. Williams, supra, 28 Cal.4th at p. 414), but a flawed advisement does not. The advice, after all, had nothing to do with how Vargas was to take the test or promote its accuracy. This conundrum, we suspect, triggered the jury’s note about “the legality of the arrest,” for if a flawed advisement did not render the test or arrest illegal, how else was the jury to weigh the flaw as affecting the reliability of results? Vargas’s briefing does not assist us in this, for he argues that improper advice is a defect requiring a remedy of exclusion, as a matter of law and policy. We have rejected that notion (above) as unsupported by the statute or case law. Even if we could accept his notion, whether to exclude evidence would be a legal question for the court (perhaps premised on a preliminary jury finding of improper advisement; Evid. Code, § 400), not a question for the jury. Jurors, of course, decide questions of fact (id., § 312), not questions of admissibility (see id., § 402).

For all of the reasons stated above, Vargas does not show, and the record does not reflect, how omission of parts of the written instruction prejudiced him.

Disposition

The judgment is affirmed.





_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

A111248, People v. Vargas



1 The record shows that voir dire later extended to a second panel, comprised of 30 prospective jurors, but does not show whether any Blacks were included on that panel.



2 Vargas offers census figures, not discussed below, suggesting that the venire in this Contra Costa County case underrepresented Blacks, but his objection below was to a strike violating Batson/Wheeler, not to the venire’s composition (e.g., People v. Burgener (2003) 29 Cal.4th 833, 855-863). We agree with the People that the census figures are thus of doubtful relevance and, to the extent they might in another case be considered as part of the totality of relevant facts a court considers on a Batson/Wheeler ruling, they are beyond consideration here because the information was neither presented, nor necessarily apparent, below.



3 Vehicle Code section 23612 provides in pertinent part: “(a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. . . .

“. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“(h) A preliminary alcohol screening [(PAS)] test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

“(i) If the officer decides to use a [PAS] test, the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”



4 The oral instruction was as follows, italicized portion omitted in the written version: “You have heard evidence that a preliminary alcohol screening test, which I will call PAS, P-A-S, was administered in this case.

“A PAS test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe a person was driving a vehicle in violation of Vehicle Code Section 23152 is a field sobriety test and may be used by an officer as a further investigative tool.

“If the officer decides to use the PAS test, he shall advise the person that he is requesting him to take a PAS test to assist the officer in determining if he is under the influence of alcohol. The person’s obligation to submit to a blood, breath or urine test as required by law for the purpose of detecting the alcoholic content of the person’s blood, is not satisfied by the person submitting to a PAS test. The officer shall advise the person of that fact and of the person’s right to refuse to take the PAS test.

“In evaluating the weight you choose to give to the PAS test, you may consider whether or not the evidence shows that the officer gave the admonitions so stated above and also whether or not:

“The PAS testing device was in proper working order;

“The PAS test was properly administered; and

“The operator was competent and qualified.

“The failure, if any, to follow the regulations adopted in Title 17 by the California Department of Health for procedures to be used in administering tests to determine the concentration of alcohol in a person’s blood may be considered by you in determining the accuracy of the test or test results made in this case.”