Hernandez

The Department of Motor Vehicles (DMV) challenges a judgment granting a writ of mandate overturning its suspension of Richard Vigil Hernandez’s driver’s license. Because the peace officer who observed Hernandez for the requisite period prior to a breath-alcohol test was not a certified intoxilyzer operator, the trial court concluded the test results were inadmissible at the license suspension hearing. We hold the results were admissible under the official duty presumption. (Evid. Code, § 664.) As we discuss below in the published portion of this opinion, the regulatory requirement that a breath test subject not regurgitate, vomit, eat, smoke, or ingest alcohol or any other fluid for at least 15 minutes before the collection of a breath sample (Cal. Code Regs., tit. 17, § 1219.3) does not require the officer observing the subject, as opposed to the person who eventually administers the breath test, to be certified in the use of the breath test device. In the unpublished section of the opinion, we conclude the regulation does not require the observing officer to maintain uninterrupted visual contact with the subject in order to satisfy section 1219.3’s “continuous…