• Kazelka, 109 CA5 1239, 331 CR3 251 (25) #A163664:
Officer Phillips stopped Kazelka for possible DUI. Kazelka admitted he was “drunk.” FSTs followed in which “Kazelka struggled to follow direction, lost his balance, and did not properly count.
Officer Phillips informed Kazelka “we’re going to do” a preliminary alcohol screening (PAS) test, and “California requires that I give the admonition for it.” However, the officer did not provide the admonition or otherwise inform Kazelka the PAS test was voluntary.
The PAS tests showed results of 0.11% and 0.10% blood alcohol content, above the 0.08% legal limit. Officer Phillips subsequently placed Kazelka under arrest.
Following 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. As a result, Officer Phillips did not obtain a second chemical breath sample from Kazelka.
The DMV notified Kazelka of its intent to suspend his driving privileges, and Kazelka requested a hearing to challenge the suspension. Kazelka argued the PAS test was inadmissible because Officer Phillips failed to provide the statutory admonition.
The DMV suspended Kazelka’s license without ruling on the admissibility question. Kazelka filed for a write of mandamus, which was granted.
[T]he 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 Court of Appeals, per Petrou, J., reversed.
While Officer Phillips behaved improperly in failing 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. And Kazelka “has not shown that the DMV itself engaged in any misconduct of a type that should be deterred in the future.” See Park, supra, 152 Cal.App.4th at p. 883.)
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Finally, we note Kazelka does not identify any Fourth Amendment violation. The administration of field sobriety tests upon detention of a driver suspected of being under the influence, for the purpose of determining whether probable cause exists to arrest, is merely a reasonable investigation, not an unreasonable search or seizure in violation of the Fourth Amendment.