I often refer to the DMV DUI hearing (Department of Morons and Villains h/t Ed Kuwatch) as a “Kangaroo Court” because the DMV Hearings Officer, often a person with no legal training, acts as the prosecutor, judge and jury.
The defense bar recently got a little help keeping client’s licenses from, of all places, the First District Court of Appeals. In Brenner v. DMV the Court held that once the DMV puts on their prima facie case by admitting, over Defense objection, the police report, if the Defense is able to show evidence questioning the accuracy of the equipment used to test the driver’s blood alcohol content, then the DMV must rebut this by showing by a preponderance of the evidence that the machine was operating correctly. In Brenner the DMV failed to do so. Brenner v. DMV (A126745, First Dist., 10/18/10) ___ Cal.App.4th ___.
In Brenner, the DMV put on their usual show with the police report and DS 367. The report showed the Brenner blew a .08. The respondent’s counsel introduced the maintenance and accuracy logs through an expert. The accuracy log showed that the machine was running about .01 high. That is, the machine was tested with 1.0 solution and the result displayed by the machine showed 1.01. Brenner’s attorney argued that Brenner’s BAC had to be below .08. The DMV thanked him and said they’d take it under consideration. They came back and suspended Brenner’s license. Brenner’s attorney submitted a writ, the Superior Court agreed with Brenner.
The DMV appealed and the Court of Appeals also agreed with Brenner.
I think its good news every time the DMV is told that the law matters in these things and have incorporated Brenner in the arsenal I bring to the DMV.