The DMV Usually Suspends the Licenses of DUI Drivers – But Not If You Don’t Watch Them

By Robert Phillips
Deputy District Attorney (Ret)

Legal Concepts and Case Citation

• Veh. Code § 13353.2(a)(1) and a DUI suspect’s license suspension by the DMV
• California Code of Regulations, title 17, section 1221.1(b)(1) and the required
• 15-minute observation period before a breath test in a DUI case

Rule: For a breath test result in a DUI case to be used to suspend a driver’s license, an officer must be able to honestly testify that they observed the driver for a minimum of 15 minutes before a breath test is administered, ensuring that the results have not been contaminated by the driver ingesting any food or drink, smoking or regurgitating.

Summary: Plaintiff James William Myers was arrested for driving while under the influence of alcohol. A PAS test in the field and a later breath test both showed that he had a blood alcohol content at twice the legal limit (about 0.15 and 0.16 percent). Upon his arrest, Myers was left unattended in a patrol car and for about 14 minutes before a breath test was administered. The Department of Motor Vehicles subsequently suspended Myers’ license for four months as a result, as mandated by law (Veh. Code § 13353.2(a)(1)).

Myers filed for a writ of mandate in superior court, contesting the suspension. The court ruled that because he had not been continuously observed for 15 minutes prior to submitting to a breath test, as mandated by California Code of Regulations, title 17, section 1221.1(b)(1) – a procedure intended to ensure he hadn’t ingested food or drink, smoked, or regurgitated – the DMV could not suspend his license. The DMV appealed.

The appellate court upheld the superior court’s ruling, holding that the court did not err in overturning the driver’s license suspension. It granted Myers’ petition for writ of mandate because the chemical breath test results may have been skewed by his activity during the time he sat alone, unobserved, in the back of the patrol car during a 15-minute period he was supposed to be under continuous observation. The DMV offered no evidence indicating the results were reliable despite noncompliance with Title 17.

Facts: Myers was observed by a Pismo Beach patrol ....