For the third time in the last month Marin County based DUI attorney John Stanko beat a DUI administrative license suspension today. The Oakland driver safety hearing officer had not choice but to set aside the driver’s suspension when it was shown that the facts of her arrest were almost identical to those in the recent California Court of Appeals case, Brenner v. DMV, (2010) 189 Cal.App.4th 365. Breath test accuracy check logs indicate high readings on the breath machine and the DMV was unable to prove by a preponderance of the evidence that the driver’s blood alcohol level was greater than .08%.
In a hearing held at the Santa Rosa DMV an administrative license suspension on a 1st offense DUI was set aside when it was shown that the arresting officer did not properly observe the driver prior to administering the breath test. Video introduced by the driver clearly showed that the officer was not with the driver during the required 15 minute observation period. The California Code of Regulations requires that a subject be observed for 15 continuous minutes prior to submitting to a breath test to ensure that the subject does not eat, drink, burp, smoke, regurgitate or do anything else that might compromise the breath sample. In this case, the officer was unable to see, hear or otherwise observe the driver as he had left her in his vehicle and stepped away to conduct other business during the observation period. The DMV had no option but to set aside the suspension due to the violation of Title 17 of the California Code of Regulations.
The third set aside of a DMV APS suspension came out of the San Francisco DMV driver safety office. In that matter the DMV called a witness in an attempt to prove that the licensee had actually been driving the vehicle. Due to the witnesses inability to identify the subject as the driver the DMV hearing officer agreed that a set aside of the suspension was appropriate.