# Bungardeanu v. England > District of Columbia Court of Appeals · April 28, 1966 · 219 A.2d 104 URL: https://www.frixlaw.com/law-library/cases/9648125 ## Case - **Full name:** Laurence BUNGARDEANU, Petitioner, v. George A. ENGLAND, Director, Department of Motor Vehicles, Respondent - **Court:** District of Columbia Court of Appeals - **Decided:** April 28, 1966 - **Citations:** 219 A.2d 104; 16 A.L.R. 3d 739; 1966 D.C. App. LEXIS 167 - **Precedential status:** Published - **Opinion:** Dissent by Hood - **Judges:** Hood, Chief Judge, and Quinn and Myers, Associate Judges - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648125 ## How later opinions describe it (automated extraction) - holding that urine specimen “was given in close enough proximity to the events in question to provide an accurate indication of the alcohol in petitioner’s system at that time” ## Opinion text HOOD, Chief Judge (dissenting): By Act of Congress of March 4, 1958, D.C.Code 1961, § 40-609a, it was provided that if as the result of the operation of a vehicle, a person “is tried in any court of competent jurisdiction” in the District of Columbia for (1) operating such vehicle while under the influence of intoxicating liquor, (2) negligent homicide, or (3) manslaughter committed in the operation of such vehicle, and if in the course of such trial there is received in evidence, based upon a chemical test, competent proof that at the time of such operation defendant’s urine contained eight one-hundredths of 1 per centum or less, by weight, of alcohol, such proof “shall be deemed prima facie proof” that defendant was not under the influence; that proof that defendant’s urine contained more than eight one-hundredths of 1 per centum, but less than twenty one-hundredths, shall “constitute relevant evidence, but shall not constitute prima facie proof that defendant was or was not” under the influence; and that proof that defendant’s urine contained twenty one-hundredths or more by weight, of alcohol “shall constitute prima facie proof” that defendant was under the influence. In Lister v. England, D.C.App., 195 A.2d 260 (1963), we ruled that the above statute, being limited by its express terms to trials \a court for the three specified offenses, had no application to a proceeding before the Director of the Department of Motor Vehicles for revocation of an operator’s permit, and that the result of a chemical analysis of the operator’s urine could not be received in evidence in such proceeding unless accompanied by expert testimony of a witness qualified to interpret the result. A few months after our decision the Commissioners of the District of Columbia by amendment to the Traffic and Motor Vehicle Regulations adopted exactly the same evidentiary effect for the result of urine tests contained in the statute for hearings conducted by the Director of Motor Vehicles or by a hearing officer. *110 At the hearing in the present case the hearing officer received in evidence the result of petitioner’s urine test (.25) without testimony of an expert qualified to interpret the result, and stated he would consider it along with all of the other evidence. To what extent the result of the urine test affected the finding by the hearing officer that petitioner was under the influence of intoxicating liquor cannot be told from the record; but I think we must assume it had a significant effect and I think its admission in evidence was error. The Commissioners of the District of Columbia are authorized to make rules and regulations concerning the issuance, suspension and revocation of operator’s permits [D.C.Codel961, 40-603(a), (Supp. V, 1966)], but I do not believe they are authorized to make rules of evidence. The fact that Congress enacted legislation creating such evidentiary rule in certain specified court cases is no authority for the Commissioners to create such rule by regulation for another type of proceeding. Indeed, it appears to me to be quite to the contrary. Congress limited the rule to certain specified cases. In effect the Commissioners have attempted to amend the statute by extending its coverage to hearings before the Director of Motor Vehicles; and I think this is beyond their power. From a practical viewpoint, I feel this regulation is inappropriate in this type of hearing. Ordinarily an administrative agency sits in a quasi-judicial capacity; but a hearing officer in cases like the one before us acts as both judge and prosecutor. The holder of the permit is called before the hearing officer to show why his permit should not be suspended or revoked. Under this regulation the individual will be required to carry the burden of overcoming “prima facie proof” that he was under the influence of intoxicating liquor at the time of the occurrence. I fear that “prima facie proof” in practice will be treated as absolute proof. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648125. Public record. Not legal advice.