Tuesday, November 27, 2007

California DUI Jury Instruction in blood test case

California DUI Lawyer jury instructions for blood case:

If the People have proved beyond a reasonable doubt that a
sample of the defendant’s blood was taken within three
hours of the defendant’s [alleged] driving and that a chemical
analysis of the sample showed a blood alcohol level of 0.08 percent
or more, you 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.

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.

California Code of Regulations, Title 17, Section 1219:

Samples taken for forensic alcohol analysis and breath
alcohol analysis shall be collected and handled in a manner
approved by the Department. The identity and integrity of the
samples shall be maintained through collection to analysis
and reporting.

In California DUI cases, the People have the burden of proof of the existence of the preliminary facts upon which the opinion of its expert witness rests.

Evidence was adduced that the defendant provided a blood sample for analysis. As a preliminary finding, before considering the test results testified to by the witnesses for the State, you must determine whether:

1. The particular apparatus utilized for analysis of the sample was in proper working order at the time of the test;
2. The test used was properly administered; and
3. The operator was competent and qualified.

If the prosecution has not convinced you beyond a reasonable doubt of the existence of all of these three preliminary facts, you may disregard the blood test results and not apply or utilize the permissive inferences regarding under the influence.

California DUI criminal defense lawyers and California drunk driving criminal defense attorneys may find this kind of jury instruction useful.