DMV License Suspension Set Aside by the San Francisco Driver Safety Office

This week, the Law Office of Robert Tayac achieved a set aside of a client's DMV license suspension. The client, who will be referred to here as J.K., was arrested for driving under the influence and charged in the San Francisco Superior Court.

On the evening of April 9, 2008, J.K. left a birthday party at which she consumed a shot of tequila immediately before driving. Shortly after leaving the party, around midnight that evening, J.K was pulled over by a California Highway Patrol officer who suspected her of drunk driving. Upon request by the law enforcement officer, J.K. submitted to a PAS (Preliminary Alcohol Screening) test, which indicated a BAC of .09 percent. Subsequently, J.K. was taken into custody and submitted to a breath test that also indicated a BAC of .09 percent.

At J.K.'s hearing before the San Francisco Driver Safety Office, the Law Office of Robert Tayac brought in expert toxicologist Halle Weingarten to testify. Ms. Weingarten testified that the results of J.K's PAS and breath tests did not prove that she had a BAC of .08 at the time she was driving. When a person consumes an alcoholic beverage, his or her BAC will rise for between 20 minutes and 2 hours afterward. The process of retrograde extrapolation can be used to estimate someone's BAC at the time of driving by projecting backwards from a later chemical test. Since J.K was pulled over shortly after she consumed the shot of tequila, her BAC was still rising at the time she was driving and taken into custody. Considering the fact that J.K.'s BAC was .09 by the time she took the breathalyzer test at the police station, Ms. Weingarten applied retrograde extrapolation to conclude that J.K's BAC may have been under .08 percent at the time of driving. Additionally, PAS devices are often inaccurate and can read BAC levels up to .02 percent above or below the real level. Consequently, according to Ms. Weingarten, even though the PAS reading was .09 percent, the DMV could not prove that J.K's BAC was .08 percent or higher at the time she was driving.

The hearing officer determined that the Department of Motor Vehicles could not prove by preponderance of the evidence that J.K. had a BAC of .08 or higher at the time of driving. Subsequently, she set aside the DMV suspension action against J.K.'s license.

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