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Chemical Breath Testing: A Case Study

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since the officer that performed the tests is not here to testified that he was in fact qualified to operate the device and if he followed the correct protocol to perform the test. In addition, Officer Newborg did not sign the chemical test section and he printed his name. » Determination: Counsels contention is deemed without merit in that: Officer Newborg signed the DS-367 Officer sworn statement under penalty of perjury and certified by signing the chemical test section of the DS-367 that: The breath test sample results were obtained in the regular course of his duties, he is qualified to operate the equipment and that the test was administered pursuant to requirement of Title 17 if the California Code of Regulations In addition, no proof …show more content…
The chemical breath tests took place within 3 hours from the time of observed driving. Based on the department’s document and Officer Kim’s testimony he came in to contact with Respondent at 3:17 AM and Officer Kim testified that he did not pbserve any vehicles an hour prior to his contact. The Respondent got to the location that he parked his vehicle sometimes after 2:17 AM and two chemical breath tests were administered at 4:35 AM and 4:38 AM: which are well within the 3 hours presumption period from the time of driving. The sequence of the time clearly shows that the test was made within the three-hour presumption. The department relies on the three-hour rebuttable presumption afforded under CVC Section 23152 (b), which indicates that a chemical test administered within three hours of driving reflects the BAC at the time of driving. This presumption can only be rebutted via evidence, not mere speculation or argument of counsel. In the absence of affirmative evidence to establish that Title 17 of the California Code of regulations (CCR) was not complied with or that the test was not conducted within three-hours of driving, specified within Section 23152 (b) VC the contention is deemed without merit. Counsel did not offer any proof to rebut the Department’s evidence. A preponderance of evidence presented by the Department supports the Department’s …show more content…
Officer Kim came into contact with Respondent to a welfare check on the occupants. Officer Kim upon contacting Respondent, observed objective symptoms of intoxication. Based on officer’s observation Officer Kim had reason to believe Respondent was under the influence based on his observation. As a result, a DUI investigation was initiated. Officer Kim had a reason to believe Respondent is under the influence of alcohol and he is not safe to drive and if he continues to drive he may cause injury to himself or damage property unless immediately arrest and Officer Kim arrested the Respondent per Section 40300.5, although the initiate contact was a welfare

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