Our last post discussed circumstances that could cause invalid breath tests. This post will be about an invalid breath test in a specific case from the Sollitt Law archives. We’ll leave identifying information out as a courtesy for our client. There’s no need to use real names, especially since this happened quite a long time ago.
Our client was pulled over for speeding and failing to stop at a stop sign. The arresting officer smelled alcohol on our client’s breath and observed her unsteadyness, slurred speech, and red, watery eyes. She took several field sobriety tests and performed poorly on them. She was arrested for driving under the influence of alcohol and was taken to the Auburn police station.
At the time, the police station did not have a breathalyzer. The nearest breathalyzer was located outside of town at the Placer County Jail. Our client was taken to the jail by a second police officer at 10:48PM. The first test she was given had a time stamp of 10:58PM. The first test gave a result of 0.11% BAC. The second test agreed with the first.
Her license was suspended under Veh.Code, § 13353.2. for having a blood alcohol content above 0.08%. The DMV hearing officer initially rejected a request to invalidate the test results despite the time stamps showing less than the required 15 minutes observation time.
We challenged the DMV’s suspension by filing a petition for a writ of mandate. That is, requesting that the court order the DMV to follow the law. In this petition, it was argued that the testing officer did not continuously observe her for 15 minutes before her breath test.
The trial court granted the petition, finding that under regulation 1219.3 the officer who administers the Intoxilyzer 5000 test should have 15 minutes of continuous observation.
“Because (the testing officer) did not even arrive at the Auburn Police Station until just before he left the Station with Petitioner, not enough time transpired for (the testing officer) to have completed the requisite fifteen minute observation period.
Although our client was in custody for more than fifteen minutes, the arresting officer’s observation was not relevant because he did not administer the test. The DMV was forced to reexamine the evidence without the breathalyzer results.
This was a huge success for us and our client. This case shows how easy it is for the police to be careless. Slip ups like this can lead to a dismissal or successful appeal for our clients.
When you need a criminal defense attorney to handle your case or appeal, hire one who knows the ins and outs of police and court procedure. Hire one who isn’t afraid to go to trial.
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