Q: DMV hearing, which BAC reading will be used?
For the purposes of a DMV hearing to determine if my BAC was 0.080 or greater, my two readings (Intoxilyzer 8000) were 0.080 (equal to) and 0.077 (less than). Is the administrative judge required to use the lower, average or higher value in that determination?
A:
The Administrative Law Judge is not required to go with the lower or higher BAC only, as they will take both into consideration. I do not know the specifics of your case and recommend you contact me directly if you want more help at 602-900-6642.
In most MVD hearings the judge is looking at these:
1. Reasonable grounds for impaired driving
2. "whether a test indicated an alcohol concentration of 0.08 or more at the time the test was administered or any drug...except if the person possesses a valid prescription for that drug"
3. whether testing method was valid and reliable and accurately measured
The second and third factors are what the judge will be most interested with in your case. You have a good argument but it isn't perfect and I would recommend hiring myself or another attorney who has experience in these hearing. We will likely have a better chance at making sure the judge sees the distinction in your results.
Stewart Salwin agrees with this answer
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