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Writ of Mandate Granted

In a very recent case, my client, a mail carrier, was able to save his job when the Superior Court issued a  Wrti of Mandate setting aside the DMV's one-year license revocation -- one-year based on a prior. 

The issue was a blood test where the crime lab stated that the name on the vial was partially smudged although there was other identifying evidence strongly suggesting that client was the donor of the blood.  The court, in part, wrote:

"Petitioner argues that his objection to the introduction of the blood test results due to the analyst’s inability to read the name on the blood vial shifted the burden to Respondent to introduce additional evidence to establish the required chain of custody linking the test results to the blood vial containing Petitioner’s blood sample. The Court agrees."

The DMV, represented by the Attorney General, argued that even if the blood test documentation was deficient, the suspension was still valid since there was ample evidence that client was intoxicated (odor, general appearance, speech and eyes) and therefore was .08 BAC or above.  In rejecting the Attorney General's argument, the court agreed with my argument based on the following languagte from Baker v. Gurley: 

"Because the Admin Per Se law is wholly pegged to a given blood-alcohol level, it follows that circumstantial evidence without a valid chemical test is insufficient to suspend a license. After all, the usual symptoms of substantive intoxication-slurred speech, bloodshot eyes, etcetera-can manifest themselves at a blood-alcohol level below .08. (See Burg v. Department of Motor Vehicles, supra, 35 Cal.3d at pp. 267-268 [noting that vision and reaction time impairments can occur below a .08 blood-alcohol level].) We are aware of no body of scientific evidence to the effect that such symptoms as slurred speech, bloodshot eyes, or even port wine stains, automatically correlate with .08 or greater blood alcohol. In fact, as contact lens wearers know, bloodshot eyes may have nothing to do with drinking. Thus to allow such symptoms to establish a blood-alcohol level without a valid chemical test is to add to the Admin Per Se statute what isn't there. (See Code Civ. Proc., § 1859 [judges are not to add or subtract to statutes].)"

Bottom line: the mail will continue to be delivered. 


 

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MICHAEL L. SHULTZ, ATTORNEY AT LAW

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