California Appellate Court Delivers a Blow to Margin of Error Arguments in DUI Breath Cases

In the case of Borger vs DMV, the Court last week ruled that a statute (in this case VC 13353.2) says that you can't drive with a blood alcohol content of .08 or more. Here, where a breath test says that your number is .08 or above, that creates a rebuttable presumption that you've violated the law.  The driver in this case got  stopped by the police and blew .08 on an intoxilyzer 5000. An expert toxicologist testified  that the particular test used here has a range of .02; in other words, that someone who blows a .08 might actually have a .06 (or .10). The trial court gave credibility to the expert's testimony and, on that basis, concludes that there's insufficient evidence that the guy actually drove with .08 or more.  The Court of Appeal  however reverses. It holds that since the regulations allow the particular testing device used here, to hold otherwise would conflict with this approval and require everyone to essentially blow a .10 percent rather than a .08 percent.  The lesson learned from this case is that there needs to be more evidence presented than just a mere blanket assertion that the machine has a margin of error, this might be some specific evidence of error from the lab, specific studies related to the device, usage logs and other documents obtained through discovery, just to name a few.

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