# DNA test on "discarded" breathilyzer mouthpiece needs no warrant **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2011, 3:07pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500 "2011-11-01T15:07:11Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2011, 3:07pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/1 "2011-11-01T15:07:11Z")
So says the California Court of Appeals, as reported by [FourthAmendment.com](http://www.fourthamendment.com/blog/). > [@](#): > > Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. [People v. Thomas](http://www.courtinfo.ca.gov/opinions/documents/B228049.PDF). The actual opinion immediately analogizes the mouthpiece to other discarded items which have been taken and tested by police, such as soda cans, water bottles, and cigarettes, and spends its reasoning pointing out that discarded is discarded. (“The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material.”) They do acknowledge that the accused argued that the police gave him the mouthpiece and then took it back, but decided that the defendant had abandoned the mouthpiece of the device “…because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it.” This seems rather thin to me. I have no problem with the idea that when an accused finishes a cigarette and tosses it away, or even crushes it in an ashtray, he’s abandoned it, regardless of whether he thought that no one would ever touch it again. Here, however, the accused is required to take the mouhtpiece, blow into it, and then return it to the police. It’s not unreasonable for him to assume he’s required to leave the device with the police. Bad ruling, in my view. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [November 1, 2011, 3:12pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/2 "2011-11-01T15:12:42Z")
I’m with you. The idea that the police can require you to give them something (the mouthpiece) and then if you fail to ask for it back claim that you “discarded” it is tenuous at best. If they had given it back and then he threw it in the trash then fair play to them if they fish it out. I’m assuming that they didn’t have the PC to do a DNA test in the first place, right? ---
**Author:** ![shiftless](https://avatars.discourse-cdn.com/v4/letter/s/e9c0ed/32.png) [@shiftless](https://boards.straightdope.com/u/shiftless)\ **Post date:** [November 1, 2011, 3:44pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/3 "2011-11-01T15:44:36Z")
The judge needs to look up the word “discarded” in the dictionary. I don’t think it means what he thinks it means. ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [November 1, 2011, 3:51pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/4 "2011-11-01T15:51:43Z")
Agreed. Even if you agree with the intent (that the government should be allowed to take a DNA sample by compelling someone to take a breath test), the method they used to justify it is unacceptable. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [November 1, 2011, 3:59pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/5 "2011-11-01T15:59:21Z")
Bad ruling. Does this mean that it’s acceptable to remove and keep the mouthpiece before handing the breathalyzer back to the officer? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2011, 4:34pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/6 "2011-11-01T16:34:44Z")
Yep, I’m with the OP for the reason given. I think it stretches the term “discarded” beyond what is reasonable. Unless, of course, the police are now required to inform the person that he may reclaim the mouthpiece and, if he doesn’t, the police may use it as evidence in other crimes. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 1, 2011, 4:35pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/7 "2011-11-01T16:35:02Z")
> [@Bricker](#): > > Here, however, the accused is required to take the mouhtpiece, blow into it, and then return it to the police. No he is not. The portable breathalyzer given in the field is not required. You are required to take the breathalyzer at the station after arrest, but not the field breathalyzer before arrest. You don’t have to take the field sobriety test (walking a line, touching your nose) prior to arrest either. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [November 1, 2011, 4:38pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/8 "2011-11-01T16:38:24Z")
> [@Fear\_Itself](#): > > No he is not. The portable breathalyzer given in the field is not required. You are required to take the breathalyzer at the station after arrest, but not the field breathalyzer before arrest. You don’t have to take the field sobriety test (walking a line, touching your nose) prior to arrest either. The obvious issue here is if the ‘suspect’ has no indications of having been or being drunk at the time - its a “checkpoint” and “everyone” takes the test - or risks going to jail (downtown) for failure to comply - even if they are not (and have not been) drunk. Double edged sword - and i’m happy to be corrected if I’m wrong and the ‘obviously not drunk or drinking’ folks get a pass on these checkpoints. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [November 1, 2011, 4:38pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/9 "2011-11-01T16:38:57Z")
> [@Fear\_Itself](#): > > No he is not. The portable breathalyzer given in the field is not required. You are required to take the breathalyzer at the station after arrest, but not the field breathalyzer before arrest. You don’t have to take the field sobriety test (walking a line, touching your nose) prior to arrest either. “Do this or we’ll arrest you and make you do it anyways at the station” seems pretty indistinguishable from “required”. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 1, 2011, 4:43pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/10 "2011-11-01T16:43:52Z")
> [@Fear\_Itself](#): > > No he is not. The portable breathalyzer given in the field is not required. You are required to take the breathalyzer at the station after arrest, but not the field breathalyzer before arrest. You don’t have to take the field sobriety test (walking a line, touching your nose) prior to arrest either. Or so you have heard? 🙂 ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 1, 2011, 5:17pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/11 "2011-11-01T17:17:39Z")
> [@John\_Mace](#): > > Or so you have heard? 🙂 That was the advice from my attorney. He is not your attorney. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 1, 2011, 5:19pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/12 "2011-11-01T17:19:43Z")
> [@Simplicio](#): > > “Do this or we’ll arrest you and make you do it anyways at the station” seems pretty indistinguishable from “required”. Field sobriety meters are much less accurate. Any time I can reduce the likelihood of error, or avoid incriminating myself, I will do it. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [November 1, 2011, 5:47pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/13 "2011-11-01T17:47:22Z")
if you’re not driving impaired - or close to the limit - then seems the field test is the better choice - if you’re close enough that the “less accurate” (and I would have to see a cite for that) field test will get you downtown, then it makes no difference. Its still a “do it or go to jail” - so your refusal at the checkpoint still gets you arrested, where they have even more ability to get your DNA for testing. So, what problem are you trying to solve? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 1, 2011, 6:09pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/14 "2011-11-01T18:09:37Z")
> [@simster](#): > > if you’re not driving impaired - or close to the limit - then seems the field test is the better choice - if you’re close enough that the “less accurate” (and I would have to see a cite for that) field test will get you downtown, then it makes no difference. Yes, it does make a difference. The difference is time. It can takes as much as several hours between arrest, transportation, booking and testing, and that can make a difference in the BAC reading when you take the test. If your are completely hammered, it probably won’t make a difference, but if you are borderline, it might save you from prosecution. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 1, 2011, 6:34pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/15 "2011-11-01T18:34:47Z")
I believe at the station they do not use a breathalyzer - rather the required test is a chemical test. Either blood or urine. I would think police are less likely to lie about chemical tests done at the station vs. the field tests. What a stupid ruling. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 1, 2011, 6:52pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/16 "2011-11-01T18:52:53Z")
The defendant did not discard the mouthpiece; he gave it back to the police, as he probably presumed was required of him. It would not even have occurred to me that a suspect who has taken a breathalyzer test could request to keep the mouthpiece. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2011, 7:00pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/17 "2011-11-01T19:00:17Z")
The distinction **Fear Itself** raises is between the “real” test and a preliminary testing device used in the field – what the California opinion calls a PAS test (“preliminary alcohol screening”) and what my home state calls a PBT (“preliminary breath test”). I’m not a California lawyer, but so far as I can determine, you don’t have the right to refuse the PAS. Or more specifically, refusing to take the PAS has its own penalty, per California Vehicle Code § 23612: > [@](#): > > The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year… So even if the person gets to the station and has a BAC of zero, their refusal to comply with the PAS can result in a fine and the suspension of their license for a year. To my way of thinking, it’s fair to summarize that as “required” to take the test. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 1, 2011, 7:17pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/18 "2011-11-01T19:17:02Z")
> [@Bricker](#): > > The distinction **Fear Itself** raises is between the “real” test and a preliminary testing device used in the field – what the California opinion calls a PAS test (“preliminary alcohol screening”) and what my home state calls a PBT (“preliminary breath test”). > > I’m not a California lawyer, but so far as I can determine, you don’t have the right to refuse the PAS. Or more specifically, refusing to take the PAS has its own penalty, per California Vehicle Code § 23612: [http://dmv.ca.gov/pubs/vctop/d11\_5/vc23612.htm](http://dmv.ca.gov/pubs/vctop/d11_5/vc23612.htm) > [@](#): > > 1. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood,\*\* if lawfully arrested\*\* for an offense allegedly committed in violation of Section 23140, 23152, or 23153. Bolding mine. Implied consent only attaches after you are lawfully arrested. PAS (or PBT) is only mandatory for drivers under the age of 21. From the transcript of [the case you cited in the OP](http://www.courtinfo.ca.gov/opinions/documents/B228049.PDF): > [@](#): > > On December 1, 2008, he was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and **consented to a PAS breath test** that required him to place his mouth over the plastic tip of the PAS device and blow into it. Bolding mine. The defendant consented to the PAS; it was not required, as he was not lawfully arrested at the time he took the PAS. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [November 1, 2011, 7:25pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/19 "2011-11-01T19:25:31Z")
> [@Bricker](#): > > I’m not a California lawyer, but so far as I can determine, you don’t have the right to refuse the PAS. Several California lawyers’ websites say differently. Here’s one example: > [@](#): > > 1. In DUI cases, if the officer advises you that he is going to subject you to a preliminary alcohol screening device, you should immediately ask the officer whether you have a right to refuse such a preliminary alcohol screening test. If the officer is honest, he will advise you that you have a right to refuse the preliminary alcohol screening test; however, if you do submit to a preliminary alcohol screening test, it does not satisfy your requirement under the Implied Consent Laws to provide an additional breath or blood test once transported to the police station and/or the nearest jail facility. [http://www.duilawyerorangecounty.com/orange\_county\_dui\_info.html](http://www.duilawyerorangecounty.com/orange_county_dui_info.html) > [@](#): > > Or more specifically, refusing to take the PAS has its own penalty, per California Vehicle Code § 23612: That’s in regards to chemical testing, not a PAS. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 1, 2011, 7:44pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/20 "2011-11-01T19:44:42Z")
A PAS test is not the required chemical test that is generally performed on blood or urine. [Next page](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500.md?page=2)