October 31, 2011 By Matthew Wallin

Breathalyzer Test Leads to Arrest in Six Unsolved Burglaries

The law is clear. You are not required to submit to the “PAS” test when the police originally stop you and suspect you of driving under the influence. This is the test where the officers have a “hand held” device and ask for you to blow into it to obtain a reading as to your blood alcohol level. The only test you are required to take (or you could lose your driving privilege for one year) is the chemical test that the police ask you to take at the station.

Troy Thomas was stopped by the police, who thought he was likely driving under the influence. They asked him to blow into the machine at the scene and he consented. It turned out that he was not in fact under the influence and so they let Mr. Thomas go free. He thought he was a lucky man. Think again. The police then used the saliva that they had obtained from Mr. Thomas during the breath test and submitted it to DNA testing. This DNA testing linked Mr. Thomas to two felony burglaries of homes in the area. This then led to Mr. Thomas being accused of six first degree burglaries which carry up to six years in prison for each offense.

Mr. Thomas, through his lawyers, argued that the use of his saliva from the “PAS” test was in violation of his constitutional rights and was in fact an illegal search. Among other things his lawyers argued that he retained “ownership” of his saliva and he did not consent to his saliva being used for any purpose other than to be used to obtain a possible result for which he was stopped, a possible DUI.

Unfortunately the court, in People vs. Thomas, decided that there was no violation of Mr. Thomas’s rights as he had no expectation of privacy in his saliva once he had blown into the PAS device.

The moral of this story is simple. Keep your mouth shut and do not submit to any tests that are not required by law. Mr. Thomas must have thought that he was not under the influence and so he consented to the PAS test. However, when he did he exposed his “DNA” to police for further investigation which was a very costly error. The “cost” for this one breath test could be as many as 36 years in prison for Mr. Thomas.

Wallin and Klarich has been helping people accused of DUI offenses and all crimes for over 30 years. We know the law cold. What that means is we can protect you when you are facing criminal charges. Call us toll free at 877-466-5245 for more information. We will be there when you call.

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