When California DMV offers breath test BAC evidence which a DUI defense attorney then shows is not in compliance with official standards, the burden shifts to DMV to show the test is reliable despite the violation. Following the law, DMV should set aside the license suspension action. San Diego County DUI Law Center Defense Attorney Rick Mueller published this new Article summarizing the language in California DMV's Administrative Per Se Driver Safety Manual for DUI / Excessive BAC cases.
The relatively new case provided in DMV's updated APS Manual which has DMV on its heels is Brenner v. DMV (2010) 189 Cal.App4th 365.
As DMV states in its Manual, "the appellate court held that breath test results that were taken from a device that was reading high, but within the deviation allowed by the regulations, were insufficient to establish that the driver had been driving with a 0.08% BAC.
In that case, two samples of the driver’s breath showed 0.08% BAC.
At the APS hearing, the driver presented a printout from the forensic laboratory showing that the breath testing instrument was yielding readings that were .002 percent high around the time of Brenner’s arrest.
Relying upon the information contained in the printout, the driver’s expert witness, a forensic toxicologist opined that because of that variance, Brenner’s BAC did not meet the legal threshold of 0.08% and that his actual BAC level could have been 0.078%.
The department did not rebut the argument.
The court found, 'Therefore any calibration error that causes the instrument to read high necessarily drops the true test results below the 0.08% threshold' and 'the Department does not meet its burden of proof.'
Based on the Brenner decision, California DMV's Manual understands "the department may have difficulty sustaining any license suspension in cases where there is evidence that the testing device is producing 'high' readings that are within the permissible variance."