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Just about anyone who has ever watched television has seen how a traffic stop works. The police pull over the car and approach the driver. They pull out their trusty black flashlight and shine it in the car. They look in the back of the car, the passenger compartment, and then shine the light at the driver. What everyone may not know, however, is that the officer may have just determined whether the driver has been drinking alcohol. In Fairfax County and other jurisdictions in Northern Virginia, the ever-present black flashlight might be more than a flashlight.

Passive Alcohol Sensors (PAS)

The flashlight might be what is known as the “Sniffer,” a device that is known as a passive alcohol sensor. It is manufactured by PAS Systems International and retails for about $700.  What it does, however, is a little more insidious than just sniffing.

It utilizes a pump to draw in ambient air from the environment. It then utilizes fuel cell technology to heat the air it has gathered and analyzes the resulting reaction for the presence of alcohol with a sensor. It then signals, using light bars, the intensity of the alcohol it has detected.

The interaction with the police officer is straightforward. When the officer approaches the vehicle, he will take the device, which is mounted within the flashlight housing, and place it close to the driver’s compartment of the car. He then will key a button that allows the Sniffer to take a sample of the ambient air and analyze it. In just a couple of seconds, the officer has an idea whether the driver has been drinking or if there is an open container of alcohol present in the vehicle.

If all of this is so straightforward, why did I use the term “insidious” in describing the Sniffer? It all comes down to your Fourth Amendment rights.

PAS, Probable Cause and the Constitution

The Fourth Amendment to the Constitution protects us all from unreasonable search and seizure. The Constitution also requires that there be probable cause for the police to search our persons, vehicles, and homes. The key word here is “search,” and therein lies the rub.

The use of the PAS is not considered a search under the law, first and foremost. It is viewed by law enforcement as an extension of the officer. By that, it is meant that the Sniffer is just a more accurate and reliable version of the officer’s eyes and nose. He or she can either smell the alcohol present with his or her nose or rely on the device. An equivalent example is that the police can use binoculars during a surveillance operation and that use, in and of itself, does not constitute a search.

Even if you could make an argument that PAS is intrusive enough to be a search, the courts have long ago established the plain view exception which means that evidence that is in plain view or readily obtainable by law enforcement does not necessarily require a search warrant to be gathered and used.

Finally, the PAS is used as an investigatory tool to help the police determine probable cause.  It is not used as evidence to prosecute the charges. Therefore, it is not subject to the same strictures as evidence that is used in the prosecution.

While many feel the PAS is an invasion of our civil liberties, the courts and law enforcement do not agree. Right or wrong, it is another tool in the police officer’s belt that prosecutors will utilize in trying to obtain convictions. If you have been charged with DUI in Northern Virginia, there is a chance that you were subjected to PAS usage. While it is a proven technology, it does not mean that it is without fault and it certainly does not mean that it was used correctly.  Jad Sarsour has defended clients in Fairfax County against charges created, in part, by the use of PAS and he is familiar with the technology and its limitations. Please give his office a call at (571) 316-2639 to set up your initial consultation and find out what can be done to defend your rights today.

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The Fairfax Criminal Defense Law firm of Jad Sarsour, represents clients throughout Northern Virginia and regularly appears in all courts, including: Fairfax County Fairfax City | Prince William County | Arlington County Alexandria City Loudoun County | Federal Court (Eastern District/VA) 

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