Borger v. Department of Motor Vehicles

Opinion

YEGAN, Acting P. J. Here we hold that a defense expert’s conclusion that there is a margin of error inherent in a blood-alcohol level (BAC) scientifically measured with an “Intoxilyzer 5000,” an approved Department of Motor Vehicles (DMV) breath testing device, may not be used to defeat the legislative determination that a person who drives with a reported blood-alcohol concentration (BAC) of 0.08 percent or higher will suffer suspension of the privilege to drive.

Respondent Steven Borger was arrested for driving under the influence of alcohol and gave two breath tests registering a BAC of 0.09 percent and 0.08 percent. DMV suspended respondent’s license for driving a motor vehicle with 0.08 percent or more, by weight, of alcohol in his blood. (Veh. Code, § 13353.2, subd. (a)(1).)1 The superior court granted respondent’s petition for writ of mándate to set aside the suspension. DMV appeals and we reverse.

At 1:20 a.m. on March 18, 2009, California Highway Patrol Officer G. Dana observed respondent swerve across the lane on State Route 227. Respondent crossed the solid white line three times and ran over a traffic cone. Officer Dana stopped respondent and smelled an alcoholic odor emitting from him and the vehicle. Respondent’s eyes were red and watery. He denied drinking alcoholic beverages but on further inquiry said, “OK, I had a handful of drinks.”

Respondent failed to satisfactorily perform the field sobriety tests and took preliminary alcohol screening (PAS) tests. The PAS tests measured respondent’s BAC at 0.087 percent and 0.09 percent. Respondent was arrested for driving under the influence (DUI) and submitted to a breath test which registered a BAC of 0.09 percent and 0.08 percent.

After DMV suspended respondent’s license, he challenged the suspension at an administrative hearing. His expert, Jay Williams, testified that all [1121]“Intoxilyzer 5000” machines have an inherent margin of error of plus or minus 0.02 percent. He said that respondent’s BAC could be “anywhere between a 0.06 and a 0.10” and could not say with reasonable scientific certainty that his BAC was 0.08 percent or higher. The DMV hearing officer did not credit Williams’s testimony and found that respondent was lawfully arrested for DUI and driving with a BAC of 0.08 percent or more. (§ 13557, subd. (b)(2).) However, the trial court credited Williams’s testimony. It impliedly found that respondent’s BAC was less than 0.08 percent, granted the writ petition, and ordered DMV to set aside the suspension of respondent’s license. This appeal followed.