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San Diego Prosecutors should prosecute DUI police who do not play by Roadside Breath Testing Rules

San Diego DUI police usually ask people to blow in unreliable
hand-held gadgets and big machines back at the station or jail.

 In breath test cases, DUI criminal defense lawyers need to know:

a) where you did the DUI breath test, and
b) which San Diego county police agency gave it to you.

San Diego DUI lawyers explain if San Diego PD had you blow in
a machine in the trunk of their patrol car, or at a DUI checkpoint,
then that is something you have to do because that is their big
San Diego DUI breath test machine for California implied consent
purposes (which require you to submit to a breath or blood test).

San Diego DUI criminal defense attorneys are often told the
hand-held gadget is thrust into their mouth - "blow in this."

No one wants to face a "refusal" or a 1 to 2 year license suspension,
so most people will do as they think they must - "blow."

People are often scared to politely decline all roadside field sobriety
testing including San Diego DUI hand-held breath test gadgets.

Any roadside breath test BEFORE arrest is optional. But any
roadside testing AFTER the arrest is usually not optional.

A good percentage of cops don't advise folks of Miranda rights.

Many cops use the hand-held gadget as a Preliminary Alcohol
Screening (PAS) Test or field sobriety test.  But they can trick
into blowing even when you have to blow.  And San Diego judges
still allow such tests to be admitted in court over objection by San
Diego DUI criminal defense lawyers.  San Diego DMV, on the
other hand, properly sustain legal objections to the use of the PAS
results as numerical results at administrative hearings.

San Diego DUI criminal defense attorneys can tell you that don't
have to blow in the hand-held gadget, but how are you to know?

San Diego county DUI officers are required to completely advise folks
over 21, as required by California Vehicle Code section 23612(i):

"(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening 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 preliminary alcohol screening test.  The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test."
 
San Diego California DUI criminal defense attorneys want to know
if the San Diego county Drunk Driving police advised you of this
BEFORE you blow.  They carefully word statements to get you to blow.

But this San Diego California DUI criminal defense lawyer feel
that the failure of the cop to properly advise a person should make
the Prosecutor charge that cop with a misdemeanor crime.

California Government Code section 1222 states:

"Every wilful omission to perform any duty enjoined by law
upon any public officer, or person holding any public trust or
employment, where no special provision is made for the punishment of
such delinquency, is punishable as a misdemeanor."

Sadly, San Diego DUI criminal defense attorneys will tell you
they have never heard of a prosecution against a drunk driving cop
for his or her wilful omission to perform the statutory duty of properly
advising someone about his or her option to decline the PAS test.

San Diego county DUI police usually do not do a proper 15 minute
continuous observation of a suspect before having him or her blow.
Even if an officer spends 15 minutes with the subject, he usually has
to retrieve the gadget out of his vehicle, turning his back to the person,
breaking any continuity of observation before getting the blow.

So, how bad is it when the cops do not do their job as required by law?

While all breath testing is often questionable, a hand-held (PAS) gadget:

Should this legal advisement be changed to add these important warnings?