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The Burden is Low for the DMV But can be Overcome!


In a decision issued by the California Court of Appeal, First Appellate District, the court held that evidence of blood alcohol concentration (BAC) rendered by a device that gave slightly inaccurate results sufficiently rebutted the DMV’s prima facie showing that the motorist drove with a .08 or more BAC.

Pursuant to Vehicle Code section 13588, the motorist requested an administrative hearing to contest suspension of his driver’s license. After the DMV produced evidence of the arresting officer’s testimony regarding observations of the plaintiff’s driving, the field sobriety and preliminary alcohol screening tests, and the BAC tests, the motorist presented evidence that the breath test used by the arresting officer produced readings of alcohol content higher by 0.002 percent than a calibrated sample. The DMV ultimately suspended his license and the motorist filed a petition to set aside the suspension.

The trial court found for the motorist, reasoning that “[t]he Department did not present any evidence to contradict the calibration records that demonstrate the machine was consistently reading higher than the true values tested.” Since, the DMV did not produce any evidence to refute the motorist’s evidence, the DMV did not meet its burden of proof by a preponderance of the evidence (i.e. more likely than not or over 50%).

The Manriquez v. Gourley case allocates the burdens of proof for administration DMV hearings as set forth below.

Initially, the DMV bears the burden of proving by a preponderance of the evidence the specific facts of the case. In the case of a DUI, that the driver was operating a motor vehicle with a BAC of 0.08 percent or higher. The court notes that this is relatively simple for the DMV to do as “Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17…The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence.”

Next, once the DMV has presented its prima facie case, the burden shifts to the driver to produce affirmative evidence that the presumed facts are nonexistent. Specifically, the motorist needs to show, by producing evidence, that “official standards were in any respect no observed.”

Once the motorist is able to show this, the burden shifts back to the DMV to prove that the test was actually reliable. In the current case, the DMV failed to do this and therefore failed to meet their burden of proof.

In response to the DMV’s argument that “even if the 0.002 variance is subtracted from [the motorist]’s test results, ‘the math calculation based on it is too speculative to sustain the finding that [the motorist’s] actual BAC was 0.07 percent.’” The court suggested that there was neither a finding nor a burden of proof on the motorist to show that his actual BAC was 0.07. Rather, the DMV was required to show that it was more likely than not that the motorist’s BAC was 0.08 or higher. Because the basis of the suspension of the license rested on the motorist operating his vehicle with a BAC of 0.08 percent and the DMV failed to introduce evidence to prove by a preponderance of the evidence that this was the case, the Court of Appeal upheld the trial court’s decision and found for the motorist.

All citations taken from Brenner v. Department of Motor Vehicles, 2010 WL 4957191 (Cal.App. 1 Dist.)

Scott Hughes is a DUI and Criminal Defense lawyer in Orange County, California practicing in State and Federal Court.

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