California DMV Manual’s introductory DUI Breath Test section summarized:
1. San Diego area DUI police must advise driver no breath sample is saved and a blood or urine test is available.
2. The breath test results was be within .02% of each other. For example, .10% & .08% but not .11% & .08%.
3. Official testing standards must be observed.
Robertson case further states (although not mentioned by DMV in its Manual):
A. Once the DUI driver’s attorney “shows official standards were in any respect, not observed, the burden shifts to DMV to prove the test was reliable despite the violation.” [p. 151]
B. “Mouth alcohol” can be shown by hearsay, because Government Code 11513(c) “does not express limit the manner in which a licensee’s evidence may be considered.” [p. 151]
C. “The test results were sufficiently suspect to rebut the presumption of reliability.” [p. 152]
4. A DUI breath machine reading high within the variance or deviation permitted by regulation is insufficient to show driver is at or above excessive BAC. As such, DMV does not meet its burden of proof.
5. If DMV tries to use the PAS, San Diego defense lawyers can counter by showing a DUI officer’s failure to comply with the 15 minute continuance observation prior to PAS testing.
Here’s California DMV’s wording in their Manual:
“12.107 Breath Test
The officer shall advise the driver that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later by that person or any other person per §23614.
The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so there will be something retained that may subsequently be analyzed for the alcoholic content of the person’s blood.
The breath sample requirements under §1221.4(a)(1) of Title 17 CCR are as follows:
“For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.”
More than two samples are required if the difference between the first two is greater than 0.02 milliliters. The two valid samples need not be in consecutive order. For example, when the samples are .17, .13, .10, and .16, the .16 and .17 samples are the valid ones.
Per case law Robertson v. Zolin, 1996 44 Cal.App.4th 147 the court found that the “official testing standards were not observed” and the suspension based on the breath test BAC readings, was improper due to an invalid sample. The recorded BAC readings were 0.18%, “Xx”, and 0.18%. The form upon which the test results were recorded explained that a “.XX.” reading referred to the presence of mouth alcohol. This reading required the officer to recommence a 15-minute observation of the driver. Instead, the officer obtained a third sample immediately after the “.XX.” reading. In requiring a third sample, the officer also overlooked the procedure that a third breath sample should be taken only if two breath results do not agree within 0.02%.
In the case, Brenner v. DMV (2010) 189 Cal.App4th 365, 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, 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.
There are two possible solutions to overcome this evidentiary problem:
Use of the PAS result: The department may utilize a PAS result instead of the evidentiary breath test result. In many cases, the driver completed a PAS test as a field sobriety test. If the PAS result is 0.08% or more after taking into account the machine variance, the PAS result should be utilized to establish the BAC at the time of driving.
In order to use this test, the tests must be in compliance with the testing requirements of Title 17 (e.g., compliance with the 15 minute observation period, etc.), and the Adams foundation must be laid by the department. The department may have to continue the hearing in order to obtain the necessary documents and/or witnesses to establish this test result.
Additional Documentation from the Forensic Lab: Many of the forensic laboratories capture and record the evidentiary breath test result out to the third decimal (e.g., 0.089% result). This breath test result document should be obtained from the forensic laboratory and should be entered into evidence by the department in order to rebut the evidence presented by the driver’s expert witness. The driver may object to the use of this document arguing that Title 17 prohibits the reporting or recording of results out to the third decimal. This is incorrect. Title 17 merely requires a laboratory to report results to the second decimal; Title 17 does not prohibit the use of an existing document which reports the breath test result out to the third decimal. Driver Safety Offices should contact the forensic laboratories in their area to determine whether this information is captured by the laboratory.”
[Source: California DMV ADMINISTRATIVE PER SE (APS) HEARINGS Driver Safety Manual, Chapter 12, pages 12-49 & 12-50]