Borger v. Department of Motor Vehicles
192 Cal. App. 4th 1118
Cal. Ct. App.2011Background
- Respondent Borger was arrested for DUI after BAC readings of 0.09 and 0.08 percent using an Intoxilyzer 5000; DMV suspended his license under §13353.2(a)(1).
- A presumption under §23152(b) applies if BAC is 0.08 percent or more within three hours of driving; Borger challenged the suspension at an administrative hearing.
- Expert Jay Williams testified that the Intoxilyzer 5000 has an inherent margin of error of ±0.02 percent, potentially placing Borger’s BAC between 0.06 and 0.10.
- The DMV hearing officer rejected Williams’s testimony; the trial court later credited it and granted the writ setting aside the suspension, implying BAC was below 0.08 at the stop.
- The appellate court held that the BAC test results are presumptively valid if official standards were observed, and Williams’s margin-of-error testimony cannot rebut the statutory presumption.
- The court reversed the trial court’s ruling, holding the margin-of-error theory would effectively rewrite the statute and is not permitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can margin-of-error testimony rebut the 0.08% presumption? | Borger | DMV | No; presumption stands. |
| Are BAC results presumptively valid when official standards were observed? | Borger | DMV | Yes; results are presumptively valid. |
| May the court rewrite the statute to exclude non-0.10% readings when using an approved instrument? | Borger | DMV | No; cannot rewrite statute to adopt marginal theory. |
Key Cases Cited
- Corrigan v. Zolin, 47 Cal.App.4th 230 (1996) (rebuttable presumption for BAC ≥0.08 within 3 hours)
- Manriquez v. Gourley, 105 Cal.App.4th 1227 (2003) (presumptive reliability of test and standards-based burden shifting)
- Davenport v. Department of Motor Vehicles, 6 Cal.App.4th 133 (1992) (official standards and reliability presume test validity)
- People v. Adams, 59 Cal.App.3d 559 (1976) ( Adams requirements for approved instruments)
- Lake v. Reed, 16 Cal.4th 448 (1997) (independent judgment on statutory/regulatory issues)
- Pacific Gas & Electric Co. v. Zuckerman, 189 Cal.App.3d 1113 (1987) (weight of expert testimony and evidentiary value)