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Name: People v. Jackson
Case #: A128782
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 11/12/2010

Because a defendant has a statutory right to refuse to take the PAS test, introduction at trial of a refusal as consciousness of guilt is error. Vehicle Code section 23612 authorizes the use of a handheld alcohol detector by law enforcement to determine the concentration of alcohol in the blood (a PAS test). The statute also provides that the test is voluntary, and requires the officer to inform the subject of his right to refuse to take it before it is administered. In this case, because of appellant’s erratic driving, a California Highway Patrol officer stopped him, suspecting he was under the influence. Appellant co-operated with the standard field sobriety tests, but when advised that he had a right to refuse a PAS test, he refused to take it. At trial, appellant moved to exclude the refusal, contending that because he had a statutory right to refuse the test, it was not probative of consciousness of guilt. The trial court permitted the evidence. Appellant appealed. The appellate court agreed with appellant. By the language of the statute, the Legislature conferred upon a citizen the right to refuse the test and required law enforcement to advise the subject of this right. Permitting introduction of a refusal as consciousness of guilt would defeat the Legislature’s intent to provide for a right of refusal. The PAS test is distinguishable from the standard field sobriety tests which have no statutory right of refusal. Although finding that it was error to admit the PAS refusal, the court found the error to be harmless in light of the otherwise strong case against appellant.