Officer’s failure to inform Kazelka that the PAS testing was voluntary does not require the test’s exclusion at DMV hearing

Kazelka v. California Department of Motor Vehicles (Cal. Ct. App., Mar. 27, 2025, No. A163664) 2025 WL 923651, at *1–2

Summary: At an administrative hearing, a California Department of Motor Vehicles (DMV) hearing officer concluded that Kazelka had been driving under the influence and temporarily suspended his license. The trial court later granted Kazelka’s petition for writ of mandamus and reversed the order of suspension, finding that the hearing officer improperly admitted and relied upon a pre-arrest breath test. The DMV now challenged the trial court’s exclusion of the breath test as contrary to California law. The Court of Appeal agreed and reversed.

Facts

A member of the public observed Kazelka swerving and driving extremely slowly and reported him to law enforcement, providing Kazelka’s license plate number and a description of his vehicle to the police.

California Highway Patrol Officer Phillips responded to the complaint, observed similar driving patterns, and conducted a traffic stop. When Officer Phillips informed Kazelka that an individual observed his driving and was concerned he was intoxicated, Kazelka admitted he had been drinking “too much” and was “drunk.”

Officer Phillips had Kazelka exit his vehicle and asked Kazelka if he was willing to take field sobriety tests. Kazelka responded, “Whatever you want to do …. Sure, why not.” During the tests, Kazelka struggled to follow direction, lost his balance, and did not properly count.

Officer Phillips then informed Kazelka “we’re going to do” a preliminary alcohol screening (PAS) test, and “California requires that I give the admonition for it.” The officer failed to provide the admonition or  inform Kazelka the PAS test was voluntary. Instead, Officer Phillips explained the purpose of the PAS test and stated, “We’re going to do two of these no matter what. If I do place you under arrest for DUI, there’s a similar test you have to blow into. But this is not that one.”

The PAS tests showed results of 0.11% and 0.10% blood alcohol content, above the 0.08% legal limit. Officer Phillips placed Kazelka under arrest. After his arrest, Kazelka provided a chemical breath sample, which indicated 0.11% blood alcohol content. When Officer Phillips attempted to obtain a second sample, the chemical breath test device malfunctioned so a second chemical breath sample from Kazelka was not obtained.

Officer Phillips subsequently prepared a report and the page regarding admonitions was left blank. In an investigative report, prepared approximately a week later, Officer Phillips checked a box indicated the “arresting officer” had provided the statutory admonition for the PAS test.

Administrative Per Se (APS) Hearing

The DMV notified Kazelka of its intent to suspend his driving privileges, and Kazelka requested a hearing to challenge the suspension.

After the conclusion of the administrative hearing, Kazelka submitted a letter to the hearing officer, objecting to the admission of Kazelka’s PAS test results because Officer Phillips failed to provide the statutory admonishment informing Kazelka the test was voluntary.

The hearing officerordered Kazelka’s driving privileges suspended for four months.

Kazelka’s Writ Petition to the Superior Court

Kazelka filed a petition for writ of mandamus challenging the DMV’s order of suspension.

The court found a preponderance of the evidence indicated Kazelka drove with a blood alcohol content above the legal limit. But the court concluded the PAS test results should have been excluded “as the proper remedy” for Officer Phillips’s failure to provide the statutory admonishment in violation of Vehicle Code section 23612, subdivision (i). The court believed application of the exclusionary rule was appropriate because the statute contained “mandatory language without reservation or factual exception.”

The trial court granted the petition, and the DMV timely appealed.

DMV Appeal

On appeal, the DMV argues the trial court improperly found Officer Phillips’s failure to inform Kazelka that the PAS testing was voluntary (1) was a foundational element to the test’s admissibility, and (2) required the test’s exclusion.

A trial court generally exercises its independent judgment to determine “ ‘ “whether the weight of the evidence supported the administrative decision.” ’ ”

Admissibility of PAS Tests

Government Code section 11513 addresses the admissibility of evidence in administrative hearings. (Lake, supra, 16 Cal.4th at p. 458, 65 Cal.Rptr.2d 860, 940 P.2d 311.) That section provides: “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.” (Gov. Code, § 11513, subd. (c).)

The PAS Test Met the General Standard for Admissibility

Courts have found PAS breath test results to be admissible under Government Code section 11513 if they either comply with the regulations set forth in California Code of Regulations, title 17 (Title 17)6 or satisfy three foundational elements set forth in Adams, supra, 59 Cal.App.3d at page 561, 131 Cal.Rptr. 190: (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator.

Here, the DMV offered evidence of the Adams foundational criteria to support the admission of the PAS test as demonstrated by the calibration officer’s testimony that the PAS device was properly maintained, and Officer Phillips’s sworn statement that he is qualified and trained on the proper operation of the PAS device.

The Statutory Admonishment Is Not a Foundational Requirement For Admissibility

Despite the hearing officer’s determination that the PAS test met the foundational criteria of Adams for admissibility, the trial court reasoned the PAS test at issue should have been excluded. The court concluded Vehicle Code section 23612 imposes a mandatory admonition that is a “foundational element of admission of the PAS tests.”

Vehicle Code section 23612, subdivision (i) (section 23612(i)), provides: “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 …. 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.” (Veh. Code, § 23612, subd. (i).)

Here, section 23612(i) requires a police officer to inform drivers that the PAS test is voluntary; however, it is silent as to the consequence of an officer’s failure to do so. The Court of Appeal declined to interpret such silence as a mandate to exclude PAS testing evidence.

The legislative history demonstrates the statutory admonition was designed to contrast the pre-arrest PAS testing from mandated post-arrest testing, and thus prevent drunk drivers from avoiding post-arrest chemical testing by participating in the PAS testing. Nothing indicates the statutory admonition impacts the admissibility of the PAS testing, and the trial court erred in concluding otherwise.

The Exclusionary Rule Does Not Apply to APS Hearings

In order to permit the primary purpose of the DMV administrative proceedings to be served, the Court of Appeal concluded that the suppression of evidence in those proceedings is not required in this case.”

While Officer Phillips failed to provide the statutory admonition and misrepresenting that fact on his subsequent report, we do not find his conduct rises to a level that would justify application of the exclusionary rule within an administrative hearing context.

Kazelka Has Not Identified Any Constitutional Violation That Would Trigger the Exclusionary Rule

Disposition

The order of the trial court dated July 30, 2021, reversing the DMV’s suspension of Kazelka’s driver’s license was reversed. The trial court wa directed to enter an order denying Kazelka’s petition for writ of mandate and reinstating the DMV’s suspension order. The DMV is entitled recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

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