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 ....