We won two DMV hearings in DUI cases last week on the same issue. Both clients had .09/.10 breath test results. In both cases, our toxicologist, Henry Greenberg testified that he believed that the evidence established a high probability that the licensee's blood alcohol level at the time of driving was below .08%.
The Vehicle Code states that if a person submits to a breath or a blood test and the reading is at or above a .08%, it is a rebuttable presumption that the persons breath or blood alcohol level at the time of driving was also at or above the legal limit. This presumption applies if the test was taken from the subject within three hours of the time of driving.
The DMV will suspend a persons privilege to drive in these circumstances unless it is proven through testimony or other evidence that the licensee's actual blood alcohol level was below .08% at the time of driving. This requires the opinion of a toxicologist and may be based on the evidence in the police report or on additional testimony from the licensee as to his or her drinking pattern. If a person finishes drinking at a time close to the traffic stop, he or she may still be absorbing alcohol recently consumed, leading to a rising blood alcohol level from below the limit at the time of driving to above the limit at the time of the test. This is called a "rising blood alcohol defense."
It can be a hard sell to a DMV hearing officer and the argument needs to be presented clearly and economically. Some experienced DMV hearing officers will accept the argument, some will reject it without fair consideration. Younger, inexperienced hearing officers struggle to understand the concept and decisions can be frustratingly inconsistent. I once had a hearing officer say to me, off the record, "So does anyone actually ever buy this argument?" I had to inform him that I had won approximately a hundred DMV hearings on this issue.
If you are interested in discussing your DUI case with an experienced DMV defense lawyer in Los Angeles, please call Nigel Witham at (310) 473-2304.