The Court of Appeal affirmed the trial court’s finding that the DMV failed to meet its burden of proof with two breath test measurements at the police station of .08, .08%. The court reasoned the DMV is precluded by Title 17, Section 1220.4 “from reporting B.A.C. results to more than two decimal places.” Thus, the breath test result is .08% as a matter of law. The calibration error of .001% (the instrument is reading slightly high) drops the true result below the 0.08% threshold as held by the Brenner court. Guessing what the third, unreported digit of the test result might be is precluded by Title 17 and would be just that: “guessing.” Thus, the DMV did not meet its burden of proof.
The Court of Appeal stated that Brenner rebutted the DMV prima facie evidence that the recorded test results were accurate by showing that the machine was reading slightly high; the burden then shifted back to the DMV to prove that the test results were reliable. The DMV that the variant of .002% in that case is too speculative to sustain the finding that the actual B.A.C. was .07%. However, the Court reasoned that there is “no burden” on respondent to show that the B.A.C. was actually .07%. The burden is on the DMV to prove by a preponderance that the B.A.C. was .08% or higher.
The DMV also argued that the test results reported as .08% could actually have been a B.A.C. from anywhere between .080 and .089% and that there was only two chances in ten that the B.A.C. was under the legal limit, using the variance. The DMV argued that the degree of probability was insufficient to show that the B.A.C. was below .08%. The Court of Appeal stated that such arguments confuse the parties’ respective burdens. The DMV must prove that the driver was operating a vehicle with a B.A.C. at or over the legal limit and it is not the driver’s burden to show at least a 50% possibility that the actual B.A.C. was below .08%.