Friday, July 6, 2012

DMV must take no action against a California driver's privileges when San Diego DUI lawyers contend the test was not done within 3 hours of driving or it was not recorded until days after the analysis, according to DMV Manual

DMV defense attorneys in San Diego agree with these particular illustrations noted in California DMV's latest updated hearing officer Manual:

A. If the DUI blood or breath test was not done within three (3) hours of driving, the otherwise rebuttable presumption under California Vehicle Code Section 23152(b) does not apply.

DMV's then concedes that the subject blood or breath test result then does not show the driver's BAC (blood alcohol concentration) at time of driving. California DMV then mentions McKinney v. DMV in its Manual, page 12-79.

B. If the blood test report results were not recorded until days after the date of the analysis - thereby failing to meet the hearsay exception to the requirement “at or near the time of the event” per California Evidence Code Section 1280(b) - the DUI test record cannot be therefore relied upon.

DMV's Manual page 12-79 even points out the driver's lawyer can cite Glatman v. Valverde to support this contention.