Coniglio

The trial court granted a writ of mandate directing the Department of Motor Vehicles (DMV) to reinstate respondent Alyson C. Coniglio’s driving privileges following her violation of Vehicle Code section 23136 et seq., the zero tolerance law. The trial court decided that the preliminary alcohol screening (PAS) device used to test respondent did not meet the breath-alcohol analysis standards set forth in title 17 of the California Code of Regulations. The trial court also found that the DMV did not prove the PAS device was otherwise reliable.

We conclude that the breath-alcohol analysis standards under title 17 of the California Code of Regulations do not apply to preliminary alcohol screening devices. We also conclude that it was the DMV’s burden to show that the PAS device was reliable. However, we agree with the trial court’s conclusion that the DMV did not establish that reliability. Accordingly, we will affirm the judgment.

Facts and Procedural Background

On March 11, 1994, at approximately 12:45 a.m., Officer Short of the Monterey Police Department observed respondent stopped at a red light. After noticing that respondent was not wearing a seat belt, Officer Short…