Sunday, July 15, 2007

California's DUI Legal Definition - Test within 3 Hours of Driving & Requirements to Follow California DUI Testing Regulations

California Drunk Driving / DUI Attorney - Required Proof in a California DUI case:

To prove that the defendant is guilty of the crime of driving with .08% or more by weigh, the People (Prosecutor) must prove that:

1. The defendant drove a vehicle; and
2. When (he/she) drove, the defendant’s blood alcohol level
was 0.08 percent or more by weight.

If the People have proved beyond a reasonable doubt that a
sample of the defendant’s blood or breath was taken within three
hours of the defendant’s driving and that a chemical analysis
of the sample showed a blood alcohol level of 0.08 percent
or more, the jury may, but are not required to, conclude that the
defendant’s blood alcohol level was 0.08 percent or more at the
time of the alleged offense.


This explains a rebuttable presumption created by statute. (Veh. Code, § 23152(b); Evid. Code, §§ 600–607.)

The California Supreme Court has held that a jury instruction phrased as a
rebuttable presumption in a criminal case creates an unconstitutional
mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491, 497–505
[189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with Roder, the
instructions have been written as permissive inferences. In addition, it is only
appropriate to instruct the jury on a permissive inference if there is no
evidence to contradict the inference. (Evid. Code, § 604.) If any evidence
has been introduced to support the opposite factual finding, then the jury
“shall determine the existence or nonexistence of the presumed fact from the
evidence and without regard to the presumption.” (Ibid.)

Therefore, the court must not give the legal instruction paragraph that begins with
“If the People have proved beyond a reasonable doubt that a sample of” if
there is no substantial evidence that the defendant’s blood alcohol level was
at or above 0.08 percent at the time of the test.


If the evidence demonstrates that the person administering the California drunk driving test or agency maintaining the testing device failed to follow California's Code of Regulations, Title 17, the cout must give the jury the following additional instructions:

[In evaluating any test results in this case, you may consider
whether or not the person administering the test or the agency
maintaining the testing device followed the regulations of the
California Department of Health Services.]


If the evidence demonstrates that the person administering the test or agency
maintaining the California DUI testing device failed to follow the title 17 regulations, the court must give the above instructions that begins with “In evaluating any test results in this case.” (People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to follow regulations in administering breath test goes to weight, not admissibility, of the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854, 49 P.3d 203]

California DUI Attorneys, courts and juries often focus on these important points of law.

Links to this post:

Create a Link

<< Home