Borger

Here we hold that a defense expert’s conclusion that there is a margin of error inherent in a blood-alcohol level (BAC) scientifically measured with an “Intoxilyzer 5000,” an approved Department of Motor Vehicles (DMV) breath testing device, may not be used to defeat the legislative determination that a person who drives with a reported blood-alcohol concentration (BAC) of 0.08 percent or higher will suffer suspension of the privilege to drive.

Respondent Steven Borger was arrested for driving under the influence of alcohol and gave two breath tests registering a BAC of 0.09 percent and 0.08 percent. DMV suspended respondent’s license for driving a motor vehicle with 0.08 percent or more, by weight, of alcohol in his blood. (Veh. Code, § 13353.2, subd. (a)(1).) 1 The superior court granted respondent’s petition for writ of mándate to set aside the suspension. DMV appeals and we reverse.

At 1:20 a.m. on March 18, 2009, California Highway Patrol Officer G. Dana observed respondent swerve across the lane on State Route 227. Respondent crossed the solid white line three times and ran over a traffic cone. Officer Dana stopped respondent and smelled an alcoholic odor emitting…