Not quite right.
You're correct that Title 17 of California Code of Regulations, which regulates forensic alcohol testing, says the two breath tests have to be within .02 of each other. However, failure to comply with Title 17 does NOT mean the tests are inadmissible in court.
A competent DUI defense attorney will know how to use this discrepancy to show that the results are suspect, and to question the competency of the person who administered the test and didn't get another sample to establish Title 17 compliance..
It might not come in as evidence at a DMV hearing, where eidence rules are less strict than in criminal court. Instead of having an expert witness testify about the test results, DMV usually just uses Title 17 compliance to get the test results into evidence. If the results don't comply with Title 17, DMV could have an expert witness testify to lay the foundation to admit the test results, but that rarely happens in DMV hearings.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
Your attorney will be able to use this to seek a dismissal of the charges based on these numbers. The prosecutor will still be able to use the samples though. It is usual that the officer did not take a third sample as the device should generate an error reading. Do not expect to go into court yourself and seek a dismissal as it will not happen.
It still can be used in court. However, your defense attorney can also use it as evidence that the device was flawed and may be able to get a dismissal of one or more of the charges for you. Good luck!
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