Court Opens Door for Breath Test Challenge in California DUI Case

In a recent San Mateo County DUI case, the court held that an off-kilter breath-testing device made it impossible to tell whether Defendant Derek Brenner had been driving under the influence of alcohol.

Brenner was stopped by a California Highway Patrol officer for driving erratically. The officer reported that Brenner's eyes were bloodshot, his speech was slow, and he smelled of alcohol.

Two breath samples tested at 0.08 percent blood alcohol, the minimum needed to prove a DUI violation. When the Department of Motor Vehicles moved to suspend Brenner's license, he presented a forensic toxicologist's report that said that the testing device consistently overstated blood-alcohol levels by 0.002 percent.

Like other breath-test meters used by the state, the device measured alcohol levels in increments of 0.01 percent. Therefore, it could have been recording Brenner anywhere from 0.08 to 0.089 percent. Because of the inaccuracy, he argued, his actual level could have been as low as 0.078 percent, within the legal limit.

A DMV hearing officer said Brenner's argument was based on speculation and suspended his license. However, a Superior Court judge set the suspension aside, a ruling that the First District Court of Appeal in San Francisco upheld in October. The court said that it was up to the DMV to show that Brenner's blood alcohol was over the legal limit.

When Brenner presented evidence that the meter readings were too high, "the burden shifted back to the department to prove the test was nonetheless reliable," Justice Peter Siggins stated in the court's 3-0 ruling.

On February 2, the state Supreme Court unanimously denied review of the DMV's appeal, leaving the appellate ruling as a binding precedent in California.

If you or someone you know has been arrested for DUI in San Mateo County, contact an experience San Mateo County DUI defense attorney for more information.