The opinion
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 88-1102
of :
:
JOHN K. VAN DE KAMP : OCTOBER 26, 1989
Attorney General :
:
JACK R. WINKLER :
Assistant Attorney General :
:
______________________________________________________________________________
THE HONORABLE MAURICE J. HANNIGAN, COMMISSIONER,
DEPARTMENT OF THE CALIFORNIA HIGHWAY PATROL, has requested an opinion on the
following question:
May a California peace officer lawfully use a preliminary breath testing device to
enforce laws prohibiting drunk driving?
CONCLUSIONS
A California peace officer may not lawfully use breath testing devices which
determine the concentration of ethyl alcohol in the subject's blood prior to the subject's arrest unless
the equipment and procedures used comply with the regulations of the State Department of Health
Services. A California peace officer may lawfully use a breath testing device which determines the
existence but not the concentration of ethyl alcohol in a person's blood in making preliminary
determinations of sobriety prior to an arrest in the enforcement of drunk driving laws.
Asking a driver stopped on reasonable suspicion that he has violated drunk driving
laws to take a preliminary breath test ("PBT") and the administration of such a test would meet
federal and state constitutional requirements. Use of a passive PBT with minimal intrusion on the
driver's time and liberty may be constitutionally employed in the screening process of a sobriety
checkpoint and an active or passive PBT may be used as a field sobriety test for drivers found to
have symptoms of impairment during the screening process of a sobriety checkpoint.
ANALYSIS
Development and Use of Breath Testing Devices
Devices developed to test a person's breath for alcohol are not new. The Harger
Drunkometer was first developed in 1931 and the scientific bases for its operation was described and
its reliability and accuracy were approved in People v. Kovacik (1954) 128 N.Y.S.2d 492. Other
breath testing devices, including the "Intoxilyzer", "Intoximeter", "Sober-Meter" and "Breathalyzer
have been used in California. (See e.g., Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262.)
1. 88-1102
The November 16, 1988 Conforming Products List of Evidential Breath Testing Devices of the
National Highway Traffic Safety Administration lists 56 approved devices (50 of them mobile)
which test a person's breath for alcohol.
The request for this opinion indicates that the Department is seeking innovative
approaches in combating the problem of intoxicated drivers. The use of Preliminary Breath Testing
(PBT) devices is being explored. The request is not limited to any specific breath testing device.
As the name implies a PBT device tests a sample of a person's breath for alcohol as a means of
determining whether he or she is under the influence of an alcoholic beverage. We understand the
word "preliminary" to indicate that the device is used before the driver is arrested to assist the officer
in determining whether to arrest the driver. It is to be distinguished from the chemical testing of a
driver's blood, breath or urine contemplated by the implied consent law (Veh. Code, § 23157) which
is administered after the driver is arrested, sometimes referred to as "evidentiary" testing.
Whether a particular device is a PBT device depends more on the method and
purpose of its use than upon the nature of the device itself. Conceivably, any breath testing device
could be used as a PBT if the necessary equipment and personnel to operate it are made available
to the peace officer before an arrest is made. Practical constraints make the more portable and
automatic devices more adaptable for use as PBT devices.
Three basic methods are used to obtain the breath samples which are used for alcohol
testing. In some the person blows into a balloon which is then attached to the breath testing device
to measure its alcohol content. In others the person exhales into a tube which is directly attached
to the measuring device. The third method takes a sample of the breath of the person after it has
been exhaled and to some extent mixed with the surrounding air from a point in front of the mouth
and nose of the person.
The several PBT devices available today are further classified as being either active
or passive in operation. From the materials provided with the opinion request we understand an
active PBT device to be one which requires the active cooperation and participation of the person
being tested to perform the test, such as by blowing through a tube for a sustained period or by
blowing up a balloon. A passive PBT device differs from an active device in that it does not require
the cooperation of the person being tested other than normally exhaling in the general direction of
the device.1 We understand that some passive PBT devices simply indicate the presence or absence
1
A passive PBT device was given a field test in a sobriety checkpoint conducted in
Charlottesville, Virginia. A report of that field test entitled "Detection of Alcohol-Impaired Drivers
Using a Passive Alcohol Sensor" dated May, 1985 was made by Ian S. Jones and Adrian K. Lund.
Appendix 1 of that report describes the device as follows:
"The Breath Alcohol Passive Sensor is a noninvasive device for detecting
alcohol in a motorist's breath. It analyses the air expelled from the lungs when held
a few inches away from the subject and indicates the alcohol level on a digital
display.
"The instrument is based on the well-established Lion Alcolmeter electronic
screening instruments and incorporates an electrochemical fuel cell sensor together
with a pump that draws the expelled breath over the sensor. The sensor and pump
have been ingeniously incorporated into the instrument's flashlight design, which
allows a police officer to carry out night-time checks quickly and easily, without
causing inconvenience or embarrassment to sober motorists. While shining the torch
2. 88-1102
of alcohol in the breath sample without any indication of its concentration. Other passive PBT
devices give an indication whether the concentration of alcohol in the breath sample is above or
below a certain level. Still others give a numerical readout of the concentration of alcohol in the
breath sample.
inside the vehicle, the alcohol content in the expired breath is analyzed and the result
displayed in seconds. . . ."
Other passive devices are similar in operation. These include the PBA 200 and the Lion Alcolmeter
VAS, both without the flashlight feature, and the Passive Alcohol Sensor, with the flashlight sensor.
3. 88-1102
California Statutes and Administrative Regulations
The "implied consent law" (now Veh. Code, § 23157)2 was enacted in 1966. (Ch.
138, Stats. 1966, 1st Ext. Session, adding § 13353 to the Veh. Code.) That law provides that once
a peace officer arrests a driver for drunk driving, the driver shall be deemed to have consented to
a chemical test of his or her blood, breath or urine for the purpose of determining the alcoholic
content of his or her blood. This test is administered after the lawful arrest of the driver for violation
of Vehicle Code section 23152 or 23153. The arrested driver is given the choice whether the test
will be of blood, breath or urine. The driver's failure to take or complete the test results in an
automatic suspension of his or her driving privilege. The purpose of the implied consent law "is to
obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably
believed to be driving while intoxicated." (Kesler v. Dept. of Motor Vehicles (1969) 1 Cal.3d 74,
77.)
2
The relevant portions of Vehicle Code section 23157 provide:
"(a)(1) Any person who drives a motor vehicle is deemed to have given his
or her consent to chemical testing of his or her blood, breath, or urine for the purpose
of determining the alcoholic content of his or her blood, . . . [re testing blood or urine
for drugs], if lawfully arrested for any offense allegedly committed in violation of
Section 23152 or 23153. The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable cause to believe
the person was driving a motor vehicle in violation of Section 23152 or 23153. The
person shall be told that his or her failure to submit to, or the failure to complete, the
required chemical testing will result in a fine and (A) . . . [mandatory imprisonment
on conviction], (B) the suspension of the person's privilege to operate a motor
vehicle for a period of six months, . . .
"(2)(A) If the person is lawfully arrested for driving under the influence of
an alcoholic beverage, the person has the choice of whether the test shall be of his
or her blood, breath, or urine, and the officer shall advise the person that he or she
has that choice. If the person arrested either is incapable, or states that he or she is
incapable, of completing any chosen test, the person shall submit to the person's
choice of the remaining tests or test, and the officer shall advise the person that the
person has that choice.
". . . . . . . . . . . . . . . . . . . . . . . . . . .
"(4) The officer shall also advise the person that he or she does not have the
right to have an attorney present before stating whether he or she will submit to a test
or tests, before deciding which test or tests to take, or during administration of the
test or tests chosen, and that, in the event of refusal to submit to a test or tests, the
refusal may be used against him or her in a court of law.
". . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) A person lawfully arrested for any offense allegedly committed while the
person was driving a motor vehicle in violation of Section 23152 or 23153 may
request the arresting officer to have a chemical test made of the arrested person's
blood, breath, or urine for the purpose of determining the alcoholic content of that
persons's blood, and, if so requested, the arresting officer shall have the test
performed."
4. 88-1102
Since the implied consent law is expressly limited to tests made after the driver's
arrest that law does not limit or affect the tests which may be made before such an arrest. Breath
tests for alcohol content were admissible by decisional law before the implied consent law was
enacted in 1966. The courts have uniformly held that the enactment of the implied consent law does
not affect the admissibility of tests under earlier established case law. (People v. Adams (1976) 59
Cal.App.3d 559, 562.)
Health and Safety Code section 436.52, first enacted in 1969 (ch. 1421, Stats. 1969),
now provides:
"The testing of breath samples by or for law enforcement agencies for
purposes of determining the concentration of ethyl alcohol in the blood of persons
involved in traffic accidents or in traffic violations shall be performed in accordance
with regulations adopted by the State Department of Health Services.
"The rules and regulations shall establish the procedures to be used by law
enforcement agencies in administering breath tests for the purpose of determining the
concentration of ethyl alcohol in a person's blood. The rules and regulations shall
be adopted and published in accordance with Chapter 3.5 (commencing with Section
11340) of Part l of Division 3 of Title 2 of the Government Code."
The regulations adopted pursuant to this statute are set forth in title 17, section 1215 et seq. in the
California Code of Regulations. Those relevant to this opinion are set forth in the Appendix. These
are referred to as "Regulation" followed by the section number in the Code of Regulations.
The regulations prescribe the standards which instruments for breath alcohol analysis
must meet. Regulation 1221.2 adopts by reference the Model Specifications for Evidential Breath
Testing Devices of the National Highway Traffic Safety Administration of the United States
Department of Transportation as published in the Federal Register, volume 49, No. 242, December
14, 1984. Regulation 1221.2(b) provides that the ability of instruments to conform to the standards
shall be tested by the U.S. Department of Transportation. Regulation 1221.3 then provides that only
those instruments named in the Conforming Products List published in the Federal Register "shall
be used for breath alcohol analysis in this State."3 Regulations 1219.3, 1221.1 and 1221.4 establish
the procedures which must be followed in administering breath tests for the purposes of determining
the concentration of ethyl alcohol in a person's blood.
The Model Specifications for Evidential Breath Testing Devices published December
14, 1984 in the Federal Register, volume 49, No. 242 have not been changed. These Model
Specifications were adopted as the standard in California by section 1221.2 of title 17 in the
3
We perceive no unconstitutional delegation of legislative power in these regulations. In Health
and Safety Code section 436.52 the Legislature determined the fundamental issue of the need for
regulation of the equipment and procedures to be used for breath tests to determine the concentration
of alcohol in the blood by law enforcement in California. It could properly delegate to the
Department of Health Services the determination of the equipment and procedures to be used to
implement the Legislature's policy expressed in section 436.52. The department could adopt an
existing standard for the equipment to be used by reference which it did by reference to model
specifications in the Federal Register. (See Kugler v. Yocum (1968) 69 Cal.2d 371; 63
Ops.Cal.Atty.Gen. 566, 571.)
5. 88-1102
California Code of Regulations. The Conforming Product List published as an appendix to the 1984
federal regulation has been changed from time to time since 1984.
The first paragraph of Health and Safety Code Section 436.52 requires the testing of
breath samples by law enforcement agencies for the purpose of determining the concentration of
ethyl alcohol in the blood of persons involved in traffic violations to be performed in accordance
with the regulations of the Department of Health Services. The statute states that such testing "shall
be performed" in accordance with the regulations. The word "shall" is to be construed as mandatory.
(See Health & Saf. Code, §§ 5 & 16; People v. Adams, supra, 59 Cal.App.3d at 562.) The plain
wording of Health and Safety Code section 436.52 requires such breath testing by law enforcement
agencies to conform to the regulations. The only exception to the equipment and procedure
requirements of the regulations for law enforcement use of breath tests are tests which do not
determine the concentration of ethyl alcohol in the blood. A PBT device which only indicates the
presence of ethyl alcohol without giving any indication of the concentration of alcohol in the sample
would not be subject to the statute or regulations. However, if a PBT device does give an indication
of the concentration of alcohol in the blood by numerical readout, lights or otherwise, its use by law
enforcement must, in so far as the reading for concentration is concerned, conform to the
regulations.
It has been suggested that the use of breath testing devices before an arrest is made
would not be subject to the regulations required by Health and Safety Code section 436.52. The
suggestion is that section 436.52 was enacted to govern the chemical testing of drivers contemplated
by the implied consent law after the driver's arrest. However, nothing in the wording of section
436.52 suggests that it is limited to post arrest testing. In 1971 Assemblyman John Stull, the author
of AB 789 which was enacted in 1969 adding section 436.52 to the Health and Safety Code
requested an opinion from the Legislative Counsel asking whether the new law required licensing
of peace officers who conducted breath tests in the field. In Opinion No. 5746 dated May 6, 1971
the Legislative Counsel replied that such licensing was not required relying upon the administrative
interpretation given the licensing requirement by the Department of Public Health. The Legislative
Counsel's opinion stated as follows:
"It should be pointed out, however, that Section 436.52, which is part of
Chapter 5, requires the board to adopt rules and regulations establishing the
procedures to be used by law enforcement agencies in administering breath tests for
the purposes of determining the concentration of ethyl alcohol in a person's blood.
Such rules and regulations, which are contained in Article 7 (commencing with
Section 1221) of Group 8 of Chapter 2 of Title 17 of the California Administrative
Code, set forth the standards of procedures for breath alcohol analysis, but do not
require the licensing of peace officers who conduct breath test in the field."
(Emphasis added.)
This opinion indicates that the regulations have been interpreted since their inception to apply to
breath testing procedures used by peace officers in the field. Nothing in that opinion suggests that
the regulations would be limited to post arrest field tests.
Accordingly we reject the suggestion that the regulations required by Health and Safety Code
section 436.52 are applicable only to tests conducted after the arrest of the subject.
It is apparent that the regulations were designed to regulate the gathering of evidence
of the concentration of alcohol in the defendant's blood for use at his or her trial on drunk driving
charges and did not contemplate the use of breath testing for such preliminary purposes as providing
a peace officer with probable cause to believe a driver was under the influence of an alcoholic
beverage which would justify the driver's arrest for drunk driving. The requirement in Regulation
6. 88-1102
1219.3 that "the subject has been under continuous observation for at least fifteen minutes prior to
collection of the breath sample" would make breath testing impractical for most preliminary
purposes.
The authority granted to the State Department of Health Services by section 436.52
is broad enough to provide for preliminary breath testing should the department decide to amend its
regulations. The regulations could authorize the use of different equipment and procedures on
breath testing for preliminary purposes.4 But unless and until such regulations are adopted, Health
and Safety Code section 436.52 prohibits the use of breath tests by law enforcement to determine
concentration of alcohol in the blood which does not use the equipment and procedures required by
the regulations.
We conclude that California law enforcement officers may use a breath testing device
for the purpose of determining the existence but not the concentration of ethyl alcohol in a person's
blood in making preliminary determinations of sobriety prior to an arrest in the enforcement of
drunk driving laws. However, they may not lawfully use breath testing devices for the purpose of
determining the concentration of ethyl alcohol in the blood using equipment or procedures which
do not comply with the regulations of the State Department of Health Services in making such
preliminary determinations.
Constitutionality of Use of Breath Testing Devices
While we have concluded that law enforcement use of PBT devices in California is
limited by statute and regulations California courts have held that the evidence produced by breath
tests which do not comply with those statutes and regulations is not excluded on that account but
may be admitted in evidence if the tests meets other statutory and constitutional requirements.
(People v. Adams, supra, 59 Cal.App.3d 559.) Furthermore, those statutes and regulations may be
amended. However, the use of PBT devices by California peace officers in the enforcement of
drunk driving laws is subject to the search and seizure requirements of the Fourth Amendment of
the United States Constitution and of article I, section 13 of the California Constitution. We
therefore consider how these constitutional requirements will affect the use of PBT devices in
enforcing drunk driving laws in common traffic law enforcement situations.
Since the question is concerned with the enforcement of laws against drunk driving
we must consider the methods used by California peace officers to enforce those laws. There are
two basic law enforcement methods in current use which must be distinguished. These may be
called the investigative stop and the sobriety checkpoint. The question further limits our concern
to the use of breath testing devices before an arrest is made. We therefore do not address the use
of such devices after an arrest is made or pursuant to the implied consent law.
4
Several states have enacted statutes which expressly authorize the use of breath tests for
preliminary purposes under prescribed circumstances. A number of these statutes limit the uses
which may be made of these preliminary tests, such as to assist the officer in determining whether
there is probable cause for arrest. Some also prohibit the use of such preliminary test results in
court. A summary of these statutes is set forth in a paper entitled The Legal Aspects of the Use of
Passive Alcohol Screening Devices as Law Enforcement Tools for DWI Enforcement by James P.
Manak, BA, JD, LLM, Senior Counsel of The Traffic Institute, Northwestern University, Evanston,
Illinois dated December, 1984.
7. 88-1102
Investigative Stops
The traditional method of enforcing drunk driving laws is the observation by a peace
officer on patrol of conduct by a motorist indicative of driving under the influence and stopping the
vehicle for investigation of that offense. It is settled that circumstances short of probable cause to
make an arrest may justify a peace officer stopping and briefly detaining a person for questioning
or other limited investigation. (People v. Mickelson (1963) 59 Cal.2d 448, 450; In re Tony C. (1978)
21 Cal.3d 888, 892.) Such a stop constitutes an invasion of a person's personal security protected
by the Fourth Amendment and by article I, section 13 of the California Constitution. The guiding
principle which governs the constitutionality of the investigative stop under the search and seizure
provisions of both constitutions is the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security. (Terry v. Ohio (1968) 392 U.S. 1, 19; In re
Tony C., supra.)
The test of the reasonableness of an investigative stop was spelled out by the
California Supreme Court in In re Tony C., supra, 21 Cal.3d at 893 as follows. In order to justify
an investigative stop or detention the circumstances known or apparent to the officer must include
specific and articulable facts causing the officer to suspect that (1) some activity relating to crime
has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or
detain is involved in that activity. Not only must the officer subjectively entertain such a suspicion,
but it must be objectively reasonable for the officer to do so: the facts must be such as would cause
any reasonable peace officer in a like position, drawing when appropriate on his training and
experience, to suspect the same criminal activity and the same involvement by the person in
question. The corollary to this rule is than an investigative stop or detention predicated on mere
curiosity, rumor, or hunch is unconstitutional, even though the officer may be acting in complete
good faith.5
Drunk Driving Stops
Our task is to apply the In re Tony C. test of reasonableness to the use of PBT devices
in an investigation conducted by a California peace officer who has stopped a vehicle to investigate
5
The court amplified its reasonable suspicion test for an investigative stop in In re Tony C., supra,
at 894 as follows:
"... [A] reasonable suspicion of involvement in criminal activity will justify
a temporary stop or detention. Under that standard, if the circumstances are
`consistent with criminal activity,' they permit - even demand - an investigation: the
public rightfully expects a police officer to inquire into such circumstances `in the
proper discharge of the officer's duties.' [citation] No reason appears for a contrary
result simply because the circumstances are also `consistent with lawful activity,' as
may often be the case. The possibility of an innocent explanation does not deprive
the officer of the capacity to entertain a reasonable suspicion of criminal conduct.
Indeed, the principal function of his investigation is to resolve that very ambiguity
and establish whether the activity is in fact legal or illegal - to `enable the police to
quickly determine whether they should allow the suspect to go about his business or
hold him to answer charges.' [citation] The citizen's undoubted interest in freedom
from abuse of this procedure is protected - so far as it is within the law's power to do
so - by the correlative rule that no stop or detention is permissible when the
circumstances are not reasonably `consistent with criminal activity' and the
investigation is therefor based on mere curiosity, rumor, or hunch."
8. 88-1102
a criminal violation. As that test indicates the circumstances known or apparent to the officer must
include specific and articulable facts causing the officer to suspect that some activity relating to
crime has occurred and that the person stopped is involved in that activity to make the stop
reasonable. Those facts could include information which gives the officer a reasonable suspicion
that the driver of a vehicle is violating the drunk driving laws which would justify stopping the
vehicle under the In re Tony C. test. The following facts have been held to provide the officer with
a reasonable suspicion that the driver had been drinking which justified stopping the vehicle for
investigation of drunk driving:
(a) Observing the driver staggering before he got into the vehicle. (People v. Beal
(1974) 44 Cal.App.3d 216; People v. Zafiropoulos (1983) 145 Cal.App.3d Supp. 35.)
(b) Observing vehicle weaving from one lane to another. (People v. Tennessee
(1970) 4 Cal.App.3d 788.)
(c) Observing vehicle weaving back and forth in the same lane. (People v. Perez
(1985) 175 Cal.App.3d Supp. 8. 11.)
Once the officer stops a vehicle on a reasonable suspicion that the driver had been
drinking the officer may then make a reasonable investigation to determine if the driver had violated
the drunk driving laws. This would include asking the driver to submit to field sobriety tests and
conducting such tests. (People v. Superior Court (Meyer) (1981) 118 Cal.App.3d 579, 585; People
v. Bennett (1983) 139 Cal.App.3d 767.)6
In our view a PBT is simply another form of field sobriety testing. Asking the driver
to blow into the PBT would appear to be no more intrusive than to ask him or her to walk a straight
line or perform other physical and verbal coordination tests. A PBT would also provide a more
reliable method of determining the existence of alcohol in the driver's blood. As the supreme court
observed in People v. Sudduth (1966) 65 Cal.2d 543, 546:
"We note that the physical and psychological disturbance of the individual
involved in obtaining a breath sample is apt to be significantly less than that involved
in extracting a blood sample, an evidence-gathering technique recently approved in
Schmerber v. California (1966) 384 U.S. 757, . . . The value of such objective
scientific data of intoxication to supplement the fallible observation by humans of
behavior seemingly symptomatic of intoxication cannot be disputed. (People v.
Duroncelay (1957) 48 Cal.2d 766, 772.) In a day when excessive loss of life and
property is caused by inebriated drivers, an imperative need exists for a fair,
efficient, and accurate system of detection, enforcement and, hence, prevention."
The courts of other states have considered the constitutional validity of the use of
PBT devices in drunk driving cases. In State v. Anderson, supra, 359 N.W.2d 887 the South Dakota
Supreme Court held that a preliminary breath test of a driver stopped on reasonable suspicion of
drunk driving short of probable cause to arrest was constitutional.
6
The courts in other states have approved field sobriety tests of a driver stopped on a reasonable
suspicion of violating drunk driving laws. (State v. Anderson (S.D. 1984) 359 N.W.2d 887; State
v. Purdie (Mont. 1984) 680 P.2d 576; State v. Wyatt (Hawaii 1984) 687 P.2d 544; State v. Little
(Me. 1983) 468 A.2d 615.) Cf. People v. Carlson (Colo. 1984) 677 P.2d 310 holding that short of
probable cause the defendant was driving while intoxicated, he may not be subjected to a roadside
sobriety test.
9. 88-1102
We conclude that California courts would hold that asking a driver stopped on
reasonable suspicion that he has violated drunk driving laws to take a PBT and the administration
of such a test would be held to be reasonable under the search and seizure requirements of the state
and federal constitutions.
Stops for Other Offenses
When a motorist is stopped on a reasonable suspicion that he or she has committed
an offense other than drunk driving the officer may make a reasonable investigation of that offense.
However, an investigatory detention exceeds constitutional bounds when extended beyond what is
reasonably necessary under the circumstances which made its initiation permissible. (People v.
McGaughran (1979) 25 Cal.3d 577, 586.) Since the circumstance which made the stop permissible
was a reasonable suspicion that the driver had committed some offense other than drunk driving, the
grounds for the stop would not justify an investigation of drunk driving. However, once a vehicle
has been legitimately stopped for an infraction, the officer may stop the vehicle and detain it and its
occupants for such period of time as is necessary to issue a citation, to determine whether the driver
has a valid driver's license and to investigate the vehicle registration. (People v. McGaughran,
supra, 25 Cal.3d at 584; Veh. Code, §§ 4462(a) & 12951(b).)7 Should the officer learn new facts
during the course of this investigation which gives him a reasonable suspicion the driver had been
drinking (such as smelling an alcoholic beverage on the breath of the driver) this independent
reasonable suspicion (see Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358) would justify
extending the detention for a reasonable investigation for drunk driving, including roadside sobriety
tests.
Refusal of Testing
In People v. Sudduth, supra, 65 Cal.2d 543 the defendant was arrested for drunk
driving and refused to perform field sobriety tests or take a breathalyzer test. The court held that
the defendant's refusal to take the tests and the prosecutor's comment thereon to the jury were
constitutionally admissable citing the reasoning in People v. Ellis (1966) 65 Cal.2d 529 decided the
same day. In the Ellis case a rape victim identified the defendant as her assailant at a lineup and
indicated she could also identify the assailant's voice. The defendant refused to speak for purposes
of voice identification. The court said that while it was impermissible to penalize an individual for
exercising his constitutional right against self incrimination by allowing comment on his failure to
testify such a rule is not applicable when, as in that case, the defendant has no constitutional right
to refuse to speak solely for purposes of voice identification. The Ellis court added (at pp. 536-537)
that the defendant's refusal to "display his voice" was not itself a testimonial communication
protected by the Fifth Amendment but it was "circumstantial evidence of consciousness of guilt, and
like similar evidence, such as escape from custody [citation], false alibi [citation], flight [citation],
suppression of evidence [citation], and failure to respond to accusatory statements when not in police
custody [citation], its admission does not violate the privilege."
The Ellis court made these observations concerning the evidentiary use of a refusal
to take a test: "A guilty party may prefer not to find himself in a situation where consciousness of
7
The court in McGaughran added that "although not specifically compelled by law, certain other
steps customarily taken as matters of good police practice are no less intimately related to the
citation process: for example, the officer will usually discuss the violation with the motorist and
listen to any explanation the latter may wish to offer; and if the vehicles of either are exposed to
danger, the officer may require the driver to proceed to a safer location before the investigation
continues."
10. 88-1102
guilt may be inferred from his conduct, but it can scarcely be contended that the police, who seek
evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce
this evidence. [¶] Although conduct indicating consciousness of guilt is often described as an
`admission by conduct,' such nomenclature should not obscure the fact that guilty conduct is not a
testimonial statement of guilt. It is therefore not protected by the Fifth Amendment. By acting like
a guilty person, a man does not testify to his guilt but merely exposes himself to the drawing of
inferences from circumstantial evidence of his state of mind."
If the driver who is lawfully stopped in an investigative stop by an officer who has
a reasonable suspicion the driver has been drinking refuses the officer's request to perform roadside
sobriety tests the officer may infer from that refusal that the driver thinks he would fail such test and
this inference of consciousness of guilt on the part of the driver is circumstantial evidence that the
driver had consumed enough alcohol that he or she would fail the tests. We think this evidence
when added to the officer's reasonable suspicion that the driver had been drinking, in the absence
of exculpatory circumstances, may well provide the officer with probable cause to believe the driver
was under the influence of alcohol which would justify the driver's arrest for drunk driving.
Other Constitutional Provisions
The above analysis has focused on the reasonableness of subjecting a driver to PBTs
for screening and field sobriety tests under the Fourth Amendment. Objections to field sobriety tests
have also been made on other constitutional grounds. Failure to give a Miranda warning before
asking a motorist stopped on a reasonable belief he or she had violated drunk driving laws to submit
to a balancing test did not violate the Fifth Amendment right against self incrimination. (Berkemer
v. McCarty (1984) 468 U.S. 420.) In Whalen v. Municipal Court (1969) 274 Cal.App.2d 809 the
court held that subjecting a driver to a field sobriety test (without the presence of counsel) did not
violate the Fifth Amendment privilege against self incrimination or the Sixth Amendment right to
counsel. Failure to collect and retain breath samples for independent testing does not violate the due
process clause of the Fourteenth Amendment. (California v. Trombetta (1983) 467 U.S. 479.)
People v. Mills (1985) 164 Cal.App.3d 652 held that there is no constitutional requirement that a
person arrested for drunk driving be notified that a breath sample would not be preserved for
independent testing if the person chose a breath test as the method of testing under Vehicle Code
section 23157.
Persons reasonably suspected of driving while under the influence of alcohol have
no constitutional right to refuse a test designed to produce physical evidence in the form of a breath
sample provided the taking of the sample is not done in a manner which shocks the conscience or
offends one's sense of justice. (People v. Sarkissian (1978) 81 Cal.App.3d 660, 663; People v.
Sudduth, supra, 65 Cal.2d at 546; Rochin v. California (1952) 342 U.S. 165.) Thus there is no
requirement that the suspect be advised of such a right. However, advising the suspect that he or
she has no right to refuse such testing will strengthen the inference of consciousness of guilt arising
from a refusal to perform the test by eliminating the suspects claim that he or she thought there was
a right to refuse such testing.
Sobriety Checkpoints
The sobriety checkpoint is a more recent method of enforcement of the laws against
drunk driving approved in Ingersoll v. Palmer (1987) 43 Cal.3d 1321. In Ingersoll the court held
11. 88-1102
that sobriety checkpoints conducted with prescribed safeguards8 complied with the Fourth
Amendment though it involved the stopping of motorists without any individualized suspicion of
wrongdoing. At p. 1327 of the Ingersoll opinion the court described the sobriety checkpoint
operation as follows:
"On the night of the checkpoint operation, every fifth car was stopped and directed
to a screening officer. The screening officer gave the driver a brief prescribed oral
explanation of the checkpoint, and handed him or her an information flyer and a
postage paid opinion survey card. During the contact, the screening officer observed
the driver for bloodshot eyes, alcohol on the breath, and any other signs of
impairment. The officer also shined a flashlight into the vehicle, looking for any
open containers or other evidence of alcohol consumption. If no symptoms of
impairment were observed, the driver was directed to continue into the northbound
traffic lanes. If signs of impairment were observed, the driver was directed to a
secondary testing area, where another officer would administer a field sobriety
test. . . ."
The Ingersoll court stated that the individualized suspicion test of In re Tony C. was not applicable
because the primary purpose of sobriety checkpoints was not to discover or preserve evidence of
8
The Ingersoll court listed the following safeguards necessary to establish the reasonableness of
sobriety checkpoints under the Fourth Amendment:
A. The decision to establish a sobriety checkpoint, the selection of the site and procedures
for the checkpoint operation must be established by supervisory law enforcement personnel and not
by an officer in the field.
B. A neutral formula must be used to determine which vehicles are to be stopped, such as
every third, fifth or tenth driver so that who is stopped is not left to the unbridled discretion of the
officer in the field.
C. Primary consideration must be given to maintaining safety for motorists and officers with
proper lighting, warning signs and clearly identifiable official vehicles and personnel.
D. The location of a checkpoint should be determined by policy-making officials rather than
by officers in the field with sites chosen which have a high incidence of alcohol related accidents
and/or arrests consistent with safety considerations.
E. The time of day and the duration of checkpoints must be carefully considered with
effectiveness, safety and motorists concerns kept in mind.
F. The checkpoint must be established with high visibility displaying its official nature by
sign, lights and uniformed officers to reassure motorists the stop is duly authorized.
G. Each motorist stopped should be detained only long enough for the officer to question the
driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and
glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be
permitted to drive on without further delay.
H. Advance publicity must be given a sobriety checkpoint to reduce its intrusiveness and
increase its deterrent effect.
12. 88-1102
crime or arrest lawbreakers, but was "primarily for the regulatory purpose of keeping intoxicated
drivers off the highways to the end of enhancing public safety." (Ingersoll v. Palmer, supra, at p.
1335)
As the court observed in Ingersoll (as quoted above) when the screening officer at
a sobriety checkpoint observes symptoms of impairment the driver is directed to a secondary testing
area, where another officer administers a field sobriety test. We have already indicated our view that
a PBT may be utilized as a field sobriety test. We believe that a PBT, using appropriate equipment
and procedures, as "a" method of field sobriety testing at sobriety checkpoints would comply with
constitutional requirements as set forth in Ingersoll.
If a PBT device were employed in the screening process of a sobriety checkpoint the
standards enumerated in the Ingersoll case (See footnote 8) would have to be met for its use to
comply with constitutional search and seizure guarantees. As the Ingersoll court discusses at p.
1338 the reasonableness of a search or seizure is measured by a balancing test, weighing the gravity
of the governmental interest or public concern served and the degree to which the program advances
that concern against the intrusiveness of the interference with individual liberty. Of the several
safeguards which the court considered significant in this weighing process the only one which
appears to be affected by the use of a PBT in screening the drivers stopped would be the length and
nature of the detention. At p. 1346 the Ingersoll court stated:
"Minimizing the average time each motorist is detained is critical both to
reducing the intrusiveness of the stop on the individual driver and to maintaining
safety by avoiding traffic tie-ups. As occurred in the Burlingame and CHP
checkpoints, each motorist stopped should be detained only long enough for the
officer to question the driver briefly and to look for signs of intoxication, such as
alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver
does not display signs of impairment, he or she should be permitted to drive on
without further delay. If the officer does observe symptoms of impairment, the
driver may be directed to a separate area for a roadside sobriety test. At that point,
further investigation would of course be based on probable cause, and general
principles of detention and arrest would apply."
The time the administration of a preliminary breath test would take and intrusion it
would make upon a driver's liberty will vary depending upon the PBT device used and the
procedures which are followed in its use. Many of the active PBT devices require the subject to
blow into a balloon or tube for a sustained period in order to test the breath from the lower part of
the lungs. This might well take more time and be more intrusive upon the driver's liberty than is
constitutionally permissible under the standards announced in Ingersoll. However, we believe the
courts would hold that the use of a passive breath testing device used in the manner described in
footnote 1 in the screening process of a sobriety checkpoint would comply with the Ingersoll
standards. We conclude that a passive preliminary breath testing device which is operated with
minimal intrusion on the driver's time and liberty may constitutionally be employed to ascertain
whether there is a reasonable suspicion the driver has been drinking during the screening process
of a sobriety checkpoint. If technology develops to the point where the administration of an active
breath test would involve no more time than the brief questioning and observation authorized in
Ingersoll, and required no more intrusion upon the driver's liberty than answering the questions
authorized by Ingersoll, active devices to determine the presence of alcohol could also
constitutionally be employed.
We conclude that use of a passive PBT with minimal intrusion on the driver's time
and liberty may be constitutionally employed in the screening process of a sobriety checkpoint and
13. 88-1102
that use of an active or passive PBT as a field sobriety test for drivers found to have symptoms of
impairment during the screening process of a sobriety checkpoint would be constitutional.
Evidentiary Value of Preliminary Breath Tests
The forgoing analysis has discussed the legality of using preliminary breath testing
by peace officers in the field. The request for this opinion also sought our views on the evidentiary
value of preliminary breath testing. Since no precise evidentiary question was submitted we will
simply discuss briefly some of the more significant constitutional and statutory evidence questions
which might arise in the prosecution of a drunk driving case concerning the use of a preliminary
breath test.
The "exclusionary rule" bars use by the prosecution of evidence which was obtained
by law enforcement officers in violation of the defendant's constitutional rights. (People v. Cahan
(1955) 44 Cal.2d 434; Mapp v. Ohio (1961) 367 U.S. 643.)9 While use of a PBT may violate Health
and Safety Code section 436.52 (supra at pp. 5-8) we have already concluded that a PBT may be
used in stated circumstances without violating constitutional guarantees. We therefore conclude that
such PBT tests results would not be inadmissible under the exclusionary rule.
One use of PBT evidence is to establish probable cause for the arrest of the defendant
when the validity of the arrest has become an issue in the case. Knowledge of the results of a PBT
taken before arrest would be important evidence on the issue of probable cause for the arrest.
Another use of PBT evidence is to establish reasonable suspicion that a driver had
been drinking so as to authorize a more extended detention for further investigation. As we have
previously discussed an officer's authority to request a driver to submit to a roadside sobriety test
depends upon the officer having a reasonable suspicion that the driver has been drinking under the
test announced in In re Tony C., supra. That suspicion may arise from observations of the
defendants driving or other conduct, a smell of alcohol on the defendant's breath, the defendant's
bloodshot eyes or slurred speech. It could also arise from a passive PBT conducted by the officer
which indicates alcohol in the breath of the driver. Such a passive PBT result would be important
evidence on the issue of the officer's reasonable suspicion the driver had been drinking upon which
the validity of a roadside sobriety test, including further breath testing, could depend.
The most obvious use of a PBT would be as indirect evidence that the defendant was
under the influence of an alcoholic beverage when he or she was driving a vehicle, the principal fact
to be proved in any drunk driving prosecution. Evidence of the results of a breath test taken within
a short time of such driving showing the presence of alcohol would be relevant evidence of that fact.
Evidence Code section 351 provides that "[e]xcept as otherwise provided by statute, all relevant
evidence is admissible." Evidence Code section 210 provides: "`Relevant evidence' means
evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the determination
of the action."
9
Article I, section 28(d) of the California Constitution (the "truth in evidence" provision in the
so-called Victim's Bill of Rights) has limited the scope of the exclusionary rule generally in
California to bar only that relevant evidence whose exclusion is compelled by the United States
Constitution.
14. 88-1102
Issues of reliability will arise in the evidentiary context. The development of passive
PBT devices has occurred within the last decade and we are not aware of any California appellate
court decisions which have considered the reliability of any passive PBT device or the admissibility
of test results utilizing these devices. In People v. Kelly (1976) 17 Cal.3d 24 the California Supreme
Court articulated the general principles of admissibility of evidence based on the application of a
new scientific technique. In what has become known as the "Kelly/Frye" rule the court stated that
the technique must be "sufficiently established to have gained general acceptance in the particular
field to which it belongs." Once the admissability of evidence based on a new scientific technique
is affirmed in a final appellate court decision which is published, "appellate endorsement of a
technique ends the need for case-by-case adjudication." (People v. Brown (1985) 40 Cal.3d 512,
530.) Until a new technique has appellate endorsement the reliability of the technique must be
proved by the testimony of qualified experts. (People v. Kelly, supra, p. 30.)
Evidence Code section 352 provides that "[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." Any ruling on admissibility would be subject to the
rather broad discretion of the trial judge to exclude evidence on one of these statutory grounds. A
trial judge might consider PBT evidence admissable on the issues of reasonable suspicion to stop
and detain or probable cause to arrest but confusing on the issue of the concentration of alcohol in
the blood when there is an evidentiary test of blood, breath or urine taken after the arrest which
complies with regulations of the Department of Health Services and on that basis refuse to admit it
in evidence for consideration by the jury on the issue of guilt.
Of course the use of PBT evidence is not restricted to the prosecution. It is
conceivable that evidence of a PBT of the defendant would indicate a lower concentration of alcohol
than the evidentiary test taken after the defendant's arrest. In fact the test results from a passive PBT
would likely indicate a lower concentration of alcohol that an active PBT because the breath sample
will be diluted somewhat by air which did not come from the lungs of the subject. If the test meets
the legal requirements for reliability and is not excluded on Evidence Code section 352 grounds it
might be offered by the defense to impeach the evidentiary test.10
APPENDIX
Regulations relevant to breath alcohol analysis in title 17, section 1215 et seq. of the
California Code of Regulations:
"1219. General. Samples taken for forensic alcohol analysis and breath
alcohol analysis shall be collected and handled in a manner approved by the
Department. The identity and integrity of the samples shall be maintained through
collection to analysis and reporting."
10
The use of PBTs is controlled by statute in several states including Florida, Indiana, Maine,
Minnesota, Mississippi, Nebraska, New York, North Carolina, North Dakota, South Dakota,
Vermont, Virginia and Wisconsin. Some of these statutes provide that PBT evidence is admissable
on some issues such as probable cause to arrest, or reasonable suspicion the driver had been
drinking, but is not admissible on other issues such as the guilt of the driver. (Report on a National
Study of Preliminary Breath Test (PBT) and Illegal per se Laws by Donald Macdonald and Marvin
Wagner issued by the U. S. Department of Transportation in August, 1981 [DOT HS-806-048])
15. 88-1102
"1219.3. Breath Collection. A breath sample shall be expired breath which
is essentially alveolar in composition. The quantity of the breath sample shall be
established by direct volumetric measurement. The breath sample shall be collected
only after the subject has been under continuous observation for at least fifteen
minutes prior to collection of the breath sample, during which time the subject must
not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten,
or smoked."
Article 7. Requirements for Breath Alcohol Analysis
"1221. General. Breath alcohol analysis shall be performed in accordance
with standards set forth in this Article."
"1221.1. Authorized Procedures.
"(a) Breath alcohol analysis shall be performed only with instruments and
related accessories which meet the standards of performance set forth in these
regulations.
"(b) Such instruments may be used for the analysis of breath samples in
places other than licensed forensic alcohol laboratories and by persons other than
forensic alcohol supervisors, forensic alcohol analysts and forensic alcohol analyst
trainees only if such places and persons are under the direct jurisdiction of a
governmental agency or licensed forensic alcohol laboratory.
"(1) Breath alcohol analysis by persons other than forensic alcohol
supervisors, forensic alcohol analysts and forensic alcohol analyst trainees shall be
restricted to the immediate analysis of breath samples collected by direct expiration
by the subject into the instrument in which the measurement of alcohol concentration
is performed.
"(2) Except for the requirements of Section 1220.4 [governing how analytical
results are to be expressed], such immediate analysis shall not be subject to the
requirements of Article 6 [governing the laboratory methods of forensic alcohol
analysis]."
"1221.2. Standard of Performance.
"(a) Instruments for breath alcohol analysis shall meet the following standard:
"(1) The instrument and any related accessories shall be capable of
conforming to the `Model Specifications for Evidential Breath Testing Devices' of
the National Highway Traffic Safety Administration of the U.S. Department of
Transportation, which were published in the Federal Register, Vol. 49, No. 242,
Pages 48854-48872, December 14, 1984, and are hereby adopted and incorporated.
"(b) The ability of instruments and any related accessories to conform to the
standard of performance set forth in this section shall be tested by the U.S.
Department of Transportation."
"1221.3. Approved Instruments.
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"(a) Only such types and models of instruments and related accessories as are
named in the `Conforming Products List' published in the Federal Register by the
National Highway Traffic and Safety Administration of the U.S. Department of
Transportation shall be used for breath alcohol analysis in this State."
"1221.4. Standards of Procedure.
"(a) Procedures for breath alcohol analysis shall meet the following
standards:
"(1) For each person tested, breath alcohol analysis shall include analysis of
2 separate breath samples which result in determinations of blood alcohol
concentrations which do not differ from each other by more than 0.02 grams per 100
milliliters.
"(2) The accuracy of instruments shall be determined.
"(A) Such determination of accuracy shall consist, at a minimum, of periodic
analysis of a reference sample of known alcohol concentration within accuracy and
precision limits of plus or minus 0.01 grams % of the true value; these limits shall
be applied to alcohol concentrations from 0.10 to 0.30 grams %. The reference
sample shall be provided by a forensic alcohol laboratory.
"1. Such analysis shall be performed by an operator as defined in Section
1221.4 (a)(5), and the results shall be used by a forensic alcohol laboratory to
determine if the instrument continues to meet the accuracy set forth in Section
1221.4 (a)(2)(A).
"(B) For the purposes of such determinations of accuracy, `periodic' means
either a period of time not exceeding 10 days or following the testing of every 150
subjects, whichever comes sooner.
"(3) Breath alcohol analysis shall be performed only with instruments for
which the operators have received training, such training to include at minimum the
following schedule of subjects:
"(A) Theory of operation;
"(B) Detailed procedure of operation;
"(C) Practical experience;
"(D) Precautionary checklist;
"(E) Written and/or practical examination.
"(4) Training in the procedures of breath alcohol analysis shall be under the
supervision of persons who qualify as forensic alcohol supervisors, forensic alcohol
analysts or forensic alcohol analyst trainees in a licensed forensic alcohol laboratory.
17. 88-1102
"(A) After approval as set forth in Section 1218, the forensic alcohol
laboratory is responsible for the training and qualifying of its instructors.
"(5) An operator shall be a forensic alcohol supervisor, forensic alcohol
analyst, forensic alcohol analyst trainee or a person who has completed successfully
the training described under Section 1221.4 (a)(3) and who may be called upon to
operate a breath testing instrument in the performance of his duties.
"(6) Records shall be kept for each instrument to show the frequency of
determination of accuracy and the identity of the person performing the
determination of accuracy.
"(A) Records shall be kept for each instrument at a licensed forensic alcohol
laboratory showing compliance with this Section."
"1221.5. Expression of Analytical Results.
"Results of breath alcohol analysis shall be expressed as set forth in Section
1220.4." [Section 1220.4 provides that all analytical results shall be expressed in
terms of the alcohol concentration in blood, based on the number of grams of alcohol
per 100 milliliters of blood.]
18. 88-1102