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License Suspension Despite Improper Calibration of Device

Whenever a client of our office is alleged to be driving while under the influence, we are keen to verify if the breath or blood test is accurate.  If the blood alcohol content is calculated by a breath test, for example, it is fundamental that the breath test machine is properly calibrated.  It is also important that the machine is periodically inspected, maintained and operated by a someone trained on the machine.
The Reader’s Digest Version:  DMV hearings can be confoundingly difficult to win, even when one proves that the breath test device violates Title 17, Section 1221.4(a)(2)(B), which requires proper calibration of the breath test device, as the following case summary exemplifies.
The calibration of the device, however, gets the most attention.  The legislature of the State of California recognized the importance of this by passing section 1221.4 (a)(2)(B) of Title 17 in the California Code of Regulations.  Section 1221.4 requires that the instrument used to measure the breath alcohol content of a suspect undergo “periodic analysis of a reference sample of known alcohol concentration” to ensure the machine is properly calibrated.  In the case of the Alcotest 7410, the calibration must be every ten days, or every 150 subjects tested, whichever comes sooner.

Paul Allen Lane was involved in a single vehicle accident in Madera County on January 3, 2010.  When the CHP arrived at the scene, the CHP officers developed the opinion that Lane may be drunk.  So the arresting officer tested Lane’s breath with an Alcotest 7410.  The machine showed a BAC of 0.19% and 0.20%.  Lane was then arrested and charged with DUI (violation California Vehicle Code § 23152(a) and § 23152(b)).

Lane’s attorney discovered that the Alcotest device had its next calibration test on January 13, 2010, eleven days after it tested Lane.  This meant that the CHP had violated the periodic testing requirements for the machine at issue and therefore, had violated Title 17, Section 1221.4 (a)(2)(B) of the California Code of Regulations. 

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At the DMV hearing, Lane lost and then appealed to the Superior Court. The Superior Court judge ruled that because the next accuracy test on the testing instrument was performed more than ten days after the January 2, 2010 test, the DMV was not entitled to a presumption that the Alcotest 7410 testing instrument worked as intended on January 3 when it tested Lane.  The Court issued an order directing the DMV to reinstate Lane’s driving privileges.

The DMV then appealed to the Fifth Appellate District, which agreed with the DMV, reinstating the original decision to suspend Lane’s license.  The Court reasoned that the Department was still entitled to a presumption that the breath testing device was not out of compliance when the test was given.  In fact, the violation really did not occur until January 12, 2010, or ten days after the prior calibration. 

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The Court went further, noting that nothing in Title 17 indicates that it can be applied retroactively to disallow earlier tests as invalid or untrustworthy if the testing equipment falls out of compliance at a later date.

In our experience with such presumptions at DMV hearings, the defense attorney must present evidence that the presumption does not apply, or is “rebutted.  This evidence may be a preliminary alcohol screening test that was properly performed (with a properly calibrated device) and measured the driver’s blood alcohol content below 0.08%.  It also could be evidence that the operator of the station breath machine was not qualified to administer the test.  It could also be that the client passed the three main field sobriety tests that the National Highway Safety Administration have determined are indicators of alcohol intoxication.

The appellate court decision citation is Paul Allen Lane v. George Valverde (5th App. Dist., 2012) 203 Cal.App.4th 71.

For more information about DMV hearings, click on the following articles:
  1. What Is a DMV Hearing for a DUI?
  2. I Lost My DMV Hearing for My DUI- Now What?
  3. DMV Rejects Rising BAC Evidence and Court of Appeal Affirms DMV
For case summaries of DMV cases our firm has handled, click here.

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