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DUI: Preliminary Alcohol Screening (PAS) Devices


Preliminary Alcohol Screening (PAS) Devices

What is a PAS test?

The PAS, or preliminary alcohol screening device, is one of the roadside “field sobriety tests” given by the officer to determine whether you are under the influence of alcohol.[i]  After the officer detains you for a DUI, but before she arrests you, she will probably ask you to exhale into a tube attached to a portable device. The PAS device only tests for the presence of alcohol, not drugs.  After a long steady breath (4-6 seconds) into the PAS device, a number estimating your BAC will appear on the digital display. The PAS device estimates your blood alcohol content and provides the police officer additional probable cause to arrest you for a DUI.

How Does the PAS Measure Blood Alcohol Content?

A PAS device[ii] measures the amount of ethanol (alcohol) in the air you exhale.  Alcohol is absorbed from the stomach and intestines into the bloodstream; when blood goes through the lungs, some of the alcohol passes through the membranes of the lungs’ alveoli into the air.  The concentration in the air is related to the blood alcohol concentration by a ratio of 2100:1.[iii]

Do I Have to Consent to a PAS test?

In general, taking the PAS is voluntary, and drivers in Los Angeles or Pasadena who are detained for a DUI do not have to agree to blow into the PAS device.[iv]  The officer must advise you, before using a PAS device, that you have the right to refuse to take the PAS test.[v]  If you do blow into the PAS device, this does not excuse you from the obligation to give a sample of your breath, blood, or urine after a Los Angeles or Pasadena DUI arrest.

Can the PAS Test Results be Used Against me?

Yes!  After a DUI arrest, numerical readings from the PAS device will likely be admissible at the DMV admin per se (“APS”) hearing if the officer provides a printout.  If your felony or misdemeanor DUI case goes to trial, the PAS results are admissible if the Los Angeles District Attorney or Pasadena City Prosecutor meets all the foundational requirements.[vi]

Lawyers who specialize in DUIs (like those at THE LEVENTHAL FIRM) know which objections to raise to limit the use of the PAS readings, to show the unreliability of the PAS machine, and to sometimes prevent the PAS device readings from ever getting in front of the jury![vii]  Not only that, THE LEVENTHAL FIRM’s criminal defense lawyers are experts in the State and Federal regulations that apply to the maintenance and use of all PAS devices in Los Angeles and Pasadena, providing you with the best DUI defense available.  Contact our DUI experts for more information about PAS tests, breath tests, blood tests, or any chemical test you took or refused in connection with a DUI arrest in Los Angeles or Pasadena.

[i] Cal VC 23612(h)

[ii] The most common PAS device model used by Pasadena and Los Angeles DUI police is the Alco-Sensor IV. Many online retailers and pharmacies offer PAS devices for sale to the general public.

[iii] For a detailed scientific explanation, see

[iv] Exceptions:  If you are under 21 or on probation for DUI, you MUST consent to the PAS test.  (See Cal VC 23136(c)(1) and Cal VC 23154)

[v] Cal VC 23612(i)

[vi] People v. Bury (1996) 41 Cal.App.4th 1194

[vii] For example, hearsay and due process issues frequently arise when California DUI officers fail to preserve the PAS device printouts.

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California DUI Sentencing Part 3: Felony DUI Convictions


California DUI Sentencing Part 3:  Felony DUI Convictions

In California, driving under the influence can result in a felony conviction either because of qualifying prior DUI convictions or because someone was injured as a result of driving while under the influence.

DUIs with prior convictions

“Simple” DUIs – violations of VC 23152(a) or (b) – can only be charged as felonies if the prosecutor pleads and proves qualifying prior convictions.  If there are three DUI convictions (VC 23152, VC 23153, or VC 23103.5)  noting offense dates within 10 years of the current offense, a conviction for that fourth will usually be a felony.[i]  However, any custody time imposed for a DUI elevated to a felony in this manner will be served in the county jail, not state prison.[ii]  The maximum time in jail is 3 years; the minimum is 180 days.  The fine for a felony DUI remains the same as “simple” DUIs –  $390 to a maximum of $1000 (plus penalties and assessments).

Note that one felony conviction noting an offense date within the past 10 years (VC 23152, VC 23153, or PC 192(c)(1)) of a current/open VC 23152 or VC 23153 is punishable as a felony. [iii] In addition, one  felony conviction for vehicular manslaughter while intoxicated[iv], regardless of when, is sufficient to elevate a current VC 23152 or VC 23153 to a felony.[v]  Punishment for a felony DUI conviction under these circumstances can include formal probation; but if formal probation is not granted, a “prison term” of 16 months, 2 years, or 3 years will be imposed.

DUIs Causing Death or Injury

If a person is driving while under the influence of drugs or alcohol and injures someone, he or she will likely face a felony.  Bear in mind that if more than one person is injured, additional prison time may be imposed.[vi]

DUI causing injury: Vehicle Code section 23153 (DUI causing injury) is a “wobbler” – chargeable as either a misdemeanor or felony at the prosecutor’s discretion for a first[vii] or second[viii] offense.  A felony conviction in either of these cases will result in a state prison sentence of 16 months, 2 years or 3 years if formal probation is not granted.  A fine of $390 to $5000 (plus penalties and assessments) will be imposed if convicted of Vehicle Code 23153 with one prior DUI conviction noting an offense date within the past 10 years.

With two prior DUI convictions, a third-time DUI causing injury under VC 23153 is a felony offense, punishable by 2, 3, or 4 years in state prison AND a fine of $1,015-$5000.[ix]  In addition, if the prosecution pleads and proves that great bodily injury[x] resulted from the DUI, AND  four or more DUI convictions in the 10 year period surrounding the current DUI offense, another 3 year consecutive term of imprisonment will be imposed.[xi]

Vehicular manslaughter while intoxicated:

A DUI (violation of VC 23152, 23153, or 23140) resulting in someone’s death can be charged under Penal Code 191.5 –  vehicular (“involuntary”) manslaughter.  (For BUI manslaughter – Boating while intoxicated – see Pen. C. 192.5.)  If the crime did not involve gross negligence, vehicular manslaughter while intoxicated can be punished as a misdemeanor or a felony.  As a felony, it is punishable by county jail time only, with a maximum sentence of 4 years.[xii]

A vehicular manslaughter while intoxicated involving gross negligence (Penal Code 191.5(a)) is a straight felony offense, punishable by a state prison term of 4, 6, or 10 years.  However, certain prior convictions[xiii] can increase the prison sentence to 15-life.

Felony DUI allegations along with felony sentencing provisions require expert  Pasadena and Los Angeles criminal defense attorneys. These matters are very complex.  THE LEVENTHAL FIRM proudly boasts expert DUI lawyers – we have handled hundreds of DUI cases and cases involving bodily injury.  If you or a loved one is facing felony DUI charges, contact our Pasadena and Los Angeles criminal defense lawyers.  THE LEVENTHAL FIRM will walk you through the law and explain what options or defenses may be available.

[i] Cal VC 23550

[ii] Cal Penal Code 1170(h)

[iii] Cal VC 23550.5(a)

[iv] These include Cal Pen C 191.5(a), 191.5(b), or 192.5(a) – boating.

[v] Cal VC 23550.5(b)

[vi] One year for each victim, with a maximum of three additional years.  Cal VC 23558

[vii] Cal VC 23554

[viii] Cal VC 23560

[ix] Cal VC 23566(a)

[x] GBI, or great bodily injury, is alleged by the prosecutor separately under Penal Code 12022.7.

[xi] Cal VC 23566(c)

[xii] See Penal Code 191.5(b), 191.5(c)(2).  A range of sentences is available under California’s Realignment Statute, Penal Code 1170(h).

[xiii] Two prior convictions of 23152, or one prior conviction of 23153, one prior of 191.5, one prior of 192(c)(1) (vehicular manslaughter), one prior of 192.5(a) or (b) (boating manslaughter while intoxicated).

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If you are convicted of a misdemeanor DUI in California[i], the punishment can include fines, jail time, classes, driver’s license suspension/revocation, and installation of an ignition interlock device in your car.  Several other consequences flow collaterally from a first-time DUI conviction – the fees for the court, the DMV hassle, insurance increase, and classes can mount up to thousands of dollars.[ii]

First-Time DUI Sentencing

For a first-time DUI in California, the maximum sentence is 6 months in jail and a base fine of $390 (plus penalties and assessments, which multiplies the total).  Typically, a Los Angeles County judge will grant probation for three years, during which time you will have to abide by a number of conditions:  obey all laws, do not drive with any amount of alcohol in your blood, and consent to all chemical tests (including the PAS test).  Other probation conditions may include:

  1. Fines – For a first DUI conviction, the base fine ranges from $390-$1000. However, there are multiple assessments that result in increasing a California DUI fine total to around 5 times the base amount imposed by the judge.  The fine can be paid in installments.  You also have the option of performing community labor in Los Angeles County instead of the DUI fine, at a rate of one day for every $125 of the base fine.
  2. Jail Time – The judge may, but is not required to, impose a county jail sentence of 48 hours for a first-time DUI offense. We rarely see jail on a first-time DUI in Los Angeles County.[iii]
  3. Alcohol Treatment Classes – For a first DUI, the required program (AB-541) is three months long. This first-time offender program consists of 30 hours of classes including group meetings, AA meetings, and individual counseling sessions.  In addition, the class charges enrollment and attendance fees, but a fee reduction or waiver is possible for those who are unable to pay.
  4. Alcohol Education classes – Attendance at the Mothers Against Drunk Driving (MADD) Victim Impact Panel[iv] or the Hospital and Morgue (HAM) program may be ordered, depending upon the circumstances. Fees are $40 for each program.  The MADD panel lasts for about 2.5 hours and includes presentations of the disastrous effects of drunk driving.  The HAM program is 8 hours long, but split into two 4-hour sessions. The program includes travel to a Los Angeles County ER department and the Los Angeles County Morgue.  Participants are required to write an essay about their experiences.[v]
  5. California Driver’s License Suspension – The court may order a suspension of your driver’s license separately from the DMV’s suspension order. Every DUI conviction is reported by the court to the DMV, and the DMV will suspend your license when they receive notice of the conviction from the court.
  6. Ignition Interlock Device – The court can order the installation of an ignition interlock device after a first DUI conviction.[vi] It is more likely to order the restriction if the BAC is over .15 percent or there was an alleged chemical test refusal.  The IID has a maximum installation period of three years.  The DMV separately requires installation of an ignition interlock device.[vii] In Los Angeles county, the DMV separately requires installation of an ignition interlock device for 5 months after a first DUI conviction under VC 23152, and 12 months after a first DUI conviction under VC 23153.[viii]  Whether the court or the DMV orders IID installation, you are entitled to a discount for costs of the device if your income is less than three times the federal poverty level.[ix]

The “standard” plea bargain offered by the Los Angeles City Attorney or District Attorney for a first-time DUI is 36 months of court-supervised probation, a fine of $390 plus penalty assessments (or 3 days community labor), and a 3 month series of alcohol education classes (the AB-541 program).  If there is a high blood alcohol level, refusal of a chemical test, or a traffic collision or accident, even though it is a first DUI conviction, the Los Angeles or Pasadena prosecutor may require more alcohol education classes, higher fines, and completion of the MADD and HAM programs.

Often times, people will plead to a first-time DUI, believing that the case is “unwinnable” and that DUI sentencing is inevitable.  If you or a loved one is facing first-time DUI charges, contact our expert Los Angeles and Pasadena DUI attorneys.  Years of experience analyzing DUI charges have taught us that a conviction for a first-time DUI is NOT a forgone conclusion.  The sentence for a first-time DUI requires a significant expenditure of time and money from you, and will undoubtedly cause some hardship in your life.  As a result, it is critical to fight DUIs to the end. These cases can be beat.

We will talk about more complicated DUI sentencing, punishment, and probationary conditions in future installments – DUI prior offenses, special allegations, and DUI felony charges, including DUI with bodily injury.  But, there is no way we can blog all of the collective DUI knowledge that our Pasadena criminal defense attorneys have to offer!  If you have questions about DUI charges or potential consequences, call THE LEVENTHAL FIRM today for a personal consultation.

[i] VC 23152, VC 23153


[iii] VC 23536(a), VC 23538(a)(1)



[vi] Cal Vehicle Code Section 23575(a)

[vii] Cal Vehicle Code Section 23573

[viii] VC 23700(a)(7)(A)(i) and VC 23700(a)(7)(B)(i)

[ix] VC 23700(b)(1)(A) et see

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DUI: Everything You Need to Know About Sobriety Checkpoints



Are Sobriety Checkpoints Legal?

The Supreme Court has held that sobriety checkpoints, like border checkpoints, are legal under certain circumstances.[i]  However, sobriety or DUI checkpoints are seizures, and thus must comport with Fourth Amendment strictures.  Dragnets, or police roadblocks set up to find anything that “looks suspicious” are illegal.  In contrast, a sobriety checkpoint is set up specifically to deter motorists from impaired driving.  The California Supreme Court has developed an 8-factor test to determine whether a sobriety checkpoint is legal:[ii]

-Did the police command personnel decide the location and procedures for the DUI checkpoint?

-Was there a neutral formula for determining which cars were stopped at the sobriety checkpoint? (every 4th car, for example)

-Was the DUI checkpoint maintained safely, with adequate road signs, signals, and lighting?

-Was the sobriety checkpoint located “on roads having a high incidence of alcohol related accidents and/or arrests?”

-Was the time and duration of the DUI checkpoint reasonable?

-Was it apparent to drivers that the DUI checkpoint was official and authorized, and did they have an opportunity to turn off from the DUI checkpoint?

-Did the sobriety checkpoint minimize the average time each motorist was detained?

-Was there advance notice to the public of the time and location of the checkpoint?

In a misdemeanor or felony DUI involving a sobriety checkpoint, the prosecutor must provide some evidence that supports each of the eight factors above. As a practical matter, police checkpoints have been used for financial gain and racial profiling.[iii][iv] The state and federal government funds many Los Angeles DUI checkpoints.[v]  A police agency receiving traffic safety grants must conduct “high-visibility enforcement efforts,” which include sobriety checkpoints and saturation patrols.[vi]

What Are Your Rights at a DUI Checkpoint?

Most Los Angeles DUI checkpoints will be visible to drivers, giving you an opportunity to take a route that avoids the checkpoint.  However, if you enter the checkpoint, you must stop[vii] and submit to inspection.  Your rights during a sobriety checkpoint are like those during any other traffic stop.  If the police ask for your license or registration, you must provide those documents.  You may refuse to answer police questions during the sobriety checkpoint.  While the police may have a right to stop you, they do not have the right to forcibly interrogate you.  It is unlawful for the officers to question motorists about things that are not related to the purpose of the checkpoint.[viii]  You also have the right to refuse to perform field sobriety tests.  You do not have to give officers permission to a search at a DUI checkpoint.  You have the right to refuse to blow into the roadside handheld PAS (Preliminary Alcohol Screening) Device.  However, under the California implied consent law[ix], if you are arrested for a DUI, you must consent to blood-alcohol chemical testing.  You also have the right to ask the arresting officer to give you a chemical test of your blood or breath if you are arrested for a DUI.[x]

Where Are Police Checkpoints Tonight?

Most California police departments send out press releases in advance of their DUI checkpoint.  Local newspapers, neighborhood websites (patch, nextdoor for e.g.), and services like nixle will provide advance notice of sobriety checkpoint locations.  You can also go to each police department’s website under “news” or “press releases” to find DUI checkpoint locations.  For example, the LAPD publicizes Los Angeles sobriety checkpoints at

If you have been arrested at a DUI checkpoint, or if you are facing criminal charges arising from police conduct at or near a sobriety checkpoint, contact the Los Angeles and Pasadena DUI lawyers at THE LEVENTHAL FIRM. Our experienced criminal defense lawyers have represented many clients detained at Los Angeles and Pasadena DUI checkpoints, and we know how to analyze the actions of police at a Los Angeles sobriety checkpoint.  Our lawyers will challenge the prosecution to prove that the sobriety checkpoint was legal; if they cannot, we fight for your misdemeanor or felony DUI to be dismissed.

[i] Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444

[ii] Ingersoll v. Palmer (1987) 43 Cal.3d 1321


[iv] In an effort to prevent racial profiling, California Government Code 12525.5 requires police to report data on all traffic stops, beginning April 1, 2019 for large police agencies.  Police are to report the “perceived race or ethnicity, gender, and approximate age of the person stopped.”

[v] For a list of grant recipients, amounts, and conditions of the grant, see the OTS annual Highway Safety Plan publication.  2016 HSP can be found here:

[vi] CFR 1300.23

[vii] VC 2814.2(a)

[viii] People v Valenzuela (1994) 28 CA4th 817, 826

[ix] VC 23612

[x] VC 23612(d)(1)

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DUI: Other Vehicles



Violations of VC 23152 and VC 23153 (drunk driving, driving under the influence) are committed when someone drives a vehicle[i]  while under the influence of a drug or alcohol (or while having a blood alcohol level of 0.08 percent or more).  Common sense and the law tells us that self-propelled vehicles, or motor vehicles,[ii]  may not be operated under the influence.  Some of the motor vehicles specified under California law are motor trucks (VC 410), golf carts (VC 345), motorcycles (VC 400), and snowmobiles (VC 557). But California’s DUI laws apply to all vehicles – motorized or not.

DUI Bicycle

Is it unlawful to operate a bicycle while under the influence?  YES. California Vehicle Code 670 says a vehicle is not a “device moved exclusively by human power,” but the Vehicle Code itself makes it clear that people who operate bicycles (including electric bicycles[iii], ) or pedicabs are subject to all the Rules of the Road, “including provisions concerning driving under the influence of alcoholic beverages or drugs.”[iv]  However, the punishment for DUI bicycle is only a $250 fine.[v]  Anyone convicted of DUI bicycle will suffer a driver’s license suspension of one year if they are between the ages of 13-21 at the time of the offense.[vi]

DUI Horse

DUI horse?  NO.  DUI horse-drawn carriage?  PROBABLY.  A horse by itself is not a vehicle – animals are not “devices,” and ridden animals and pedestrians are categories of traffic separate from vehicles.[vii]  While VC 21050 says that people who ride horses are subject to the rules of the road, it omits the inclusive language of the bicycle statute regarding “provisions concerning driving under the influence of alcoholic beverages or drugs.”

DUI Wheelchairs

What about wheelchairs?  NO. Pedestrians and vehicles are different types of traffic. Anyone classified as a pedestrian cannot be driving under the influence.  Pedestrians include those on foot and people who are operating wheelchairs (motorized or not), motorized tricycles, or motorized quadricycles, because they cannot get around on foot.[viii]   If you are using a Segway, hoverboard, or other “electric personal assistive mobility device” you are also considered a pedestrian.[ix]

DUI Boating

DUI Boating, or BUI – YES. California Harbors and Navigation Code section 655 outlaws the operation or manipulation of any “vessel,” waterskis, an aquaplane, or “similar device” while under the influence of alcohol or drugs, with a blood alcohol level greater than 0.08 percent.  It is also unlawful to operate any non-recreational boat with a BAC over 0.04 percent. BUI causing bodily injury can be charged as a misdemeanor or as a felony.  The boat doesn’t have to be motorized or subject to registration, so kayaks, rowboats, and sailboats all fall within the BUI statute.  A BUI case calls for a unique defense – clearly, the standing field sobriety tests given in highway DUIs do not apply (ever hear of “sea legs?”) and science does not back up the seated battery of FSTs given in these cases.  There are also significant stressors unique to the open water such as heat, spray, and boat motion, that can affect a boater’s performance on the seated FSTs.[x]

DUI Flying – YES.  It is unlawful to operate an aircraft[xi] in air, ground, or water, or to parachute “for sport” while under the influence of drugs or alcohol.[xii]  It is also unlawful to operate an aircraft in air, water, or on the ground with a blood alcohol level of above 0.04 percent.[xiii]  It is unlikely that drones or other remote-controlled flying objects will be considered “aircraft.”

If you have been charged with one of these more unusual misdemeanor DUI offenses, contact the Los Angeles and Pasadena attorneys at THE LEVENTHAL FIRM.  From beer & boating to peyote & ponyrides, we’ve got you covered.  Know your rights, ride safe, and call our expert DUI and BUI lawyers for help.

[i] VC 670: A “vehicle” is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

[ii] VC 415(a)

[iii] VC 312.5

[iv] VC 21200

[v] VC 21200

[vi] VC 21200.5, 13202.5

[vii] VC 620

[viii] VC 467 (b)

[ix] VC 467(a)(2)

[x] Punishment for BUI is found in California Harbors & Navigation Code section 668

[xi] Cal Public Utilities Code Section 21012: “Aircraft” means any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation.

[xii] Cal Public Utilities Code Section 21407.1(a)

[xiii] Cal Public Utilities Code Section 21407.1(b)

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I’ve Been Pulled Over for DUI: What Should I Do?

I’ve handled hundreds of DUI cases and tried many. These lawyer experiences shaped my DUI paradigm from a practical standpoint – I now have a consistent opinion (other lawyers may disagree) on what a person should do and/or say, if anything, when pulled over for DUI.

Phase One – The Point of Contact

Here, you are pulled over; the police officer approaches your driver side window and asks you inculpatory questions. The officer will try and lock down a drinking (or use if drug suspicion) pattern (e.g., how much have you had to drink or use, when, and where etc). Although our Miranda rights are generally not ripe at this point (Berkemer v. McCarty, 468 U.S. 420 (1984)), we don’t have to offer up any information. In short, please be kind and respectful to the police officer and say something like this, “Sir, I understand you are doing your job, and I very much appreciate your efforts to keep our roads safe. Respectfully, Sir, I would prefer not to answer any of these questions. I am more than happy to assist you with other parts of your investigation.” Of couse, we are not more than happy to assist and we will not, but we must be cognizant of the underlying psychology here with a hungry DUI officer.

Phase Two – The Field Sobreity Excercises (FSTs)

After the officer tries to lock down a drinking pattern, he or she will direct you to perform a series of field sobriety excercises and blow into a small breath test machine called a “PAS” or “PBT” (preliminary alcohol screening or preliminary breath test). Vehicle code section 23612(h) and (i) give us the right to refuse the FSTs and PAS (unless on probation or under 21); the investigating officer is supposed to advise us of this right and they routinely do not. Therefore, when the police officer makes it seem as if you have no choice but to do these tests, please respond with something like, “Sir,respectfully, I appreciate your diligence in this investigation, but kindly, Sir, I’m going to choose not to do the FSTs and PAS. Thank you.” After this, the officer may arrest you and take you down to the station.

Phase Three – The Station House or Hospital (Breath or Blood?)

At the station, a police officer will offer you a choice to give another or different breath test and/or a blood test. The station house (or hospital) tests are mandatory in the sense that we suffer administrative penalties if we refuse them; I don’t think it is wise to refuse, especially if you know you haven’t had much to drink. So, do we take breath or blood then? I think that if we are unsure about our blood alcohol content, then choose breath. If you know without a doubt that you will be under the limit, take the blood test. See, the breath test is generally not as accurate as the blood test for a number of reasons. The law proscribes “blood” alchol content at or above .08, not “breath” alcohol content – the breath test uses a standard ratio to convert the breath alcohol reading into an equivalent and corresponding pulmonary blood concentration. This ratio is known as the “breath to blood partition ratio”. The problem with this conversion is that every human being has different breath to blood ratios at any given point in time; thus, the standard ratio may not be the same ratio we would actually have in effect at the time of the breath test. Consequently, the breath result is often times an overstated blood result. The blood test by contrast, analyzes our blood alcohol content directly. Direct (as opposed to indirect ) analysis does not use a conversion ratio, so the result should be on point more often than breath. At the end of the day, the police officer should have zero drinking (or use) pattern evidence, zero FSTs snd zero PBTs.