Excessive BAC DUI DMV APS Hearings
California DMV Administrative Per Se Hearings usually deal with a BAC in excess of the legal limit for the applicable category. Resourceful San Diego DUI attorneys should have the complete APS Driver Safety Manual with these excerpts:
“12.100 EXCESSIVE BAC
12.101 Driving With Excessive BAC
A person, 21 years of age and older, cannot operate a commercial motor vehicle with a blood alcohol level of 0.04% or greater, or drive a motor vehicle with a blood alcohol level 0.08% or greater.
Drivers under the age of 21 or drivers in violation of DUI probation for a conviction of §23l52 or §23153 VC, cannot operate a motor vehicle with a BAC level of 0.01% or greater.
12.102 Chemical Tests
Any person operating a motor vehicle has given consent to chemical testing to determine the BAC level if arrested for an offense allegedly committed in violation of §23140, §23152 or §23153 VC. The driver has a choice of a blood or breath test. If the driver is incapable, or states that he or she is incapable of completing the chosen test, the person shall submit to the remaining test. If a blood or breath, or both, are unavailable, the driver shall submit to a urine test.
Any person operating a motor vehicle for an offense allegedly committed in violation of §23136 or §23l54 and has been lawfully detained has given consent to a preliminary alcohol screen test (PAS) or other chemical test.
If the officer has reasonable cause to believe the driver was under the influence of a drug or the combined influence of an alcoholic beverage and a drug, the driver has the choice of submitting to a blood or urine test. (§23l62 VC)
If the driver submitted to a blood or urine test, the law enforcement officer shall submit the results immediately to the appropriate forensic laboratory.
Requirements for the forensic alcohol laboratories that analyze the blood and urine test samples and for breath alcohol equipment and analysis and are provided in Title 17 of the California Code of Regulations (CCR).”
[updated California DMV Manual, page 12-47]
Title 17 is a potential fertile source of litigation for San Diego DUI lawyers handling these cases. Showing any failure to adhere to any regulation or standard rebuts any presumption of the excessive BAC test results, under California case law.