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F 12.61 n1 Inference Of Intoxication: Research Notes (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155)).
See Annotation, Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 ALR4th 149 and Later Case Service.
F 12.61 n2 Reversible Error To Instruct Where Breath Analysis Is Less Than Statutory Minimum (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155)).
In People v. Wood (89) 207 CA3d Supp 11 [255 CR 537], the defendant’s blood test produced results of .089 and .090. (Id., at 14.) The trial court instructed the jury that it must presume the defendant to be under the influence of alcohol if his blood alcohol level was .10% or more. [Now the level is .08% or more.] The reviewing court held that it was reversible error to give the instruction because it is error to give an instruction which correctly states a principle of law which has no application to the facts of the case. (Id. at 15.)
The court concluded that the error was prejudicial because the defendant’s blood alcohol readings were so close to the .10% level that they allowed the jury to “borrow” the .10% presumption.
NOTE: The instruction in Wood used the statutory “presumption” language — not CJ 12.61.)
F 12.61 n3 Partition Ratio Presumption (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155)).
ALERT: People v. Bransford (94) 8 C4th 885, 893 [35 CR2d 613] held that evidence of individual variance in partition ratios for converting breath-alcohol level to blood-alcohol level is not admissible. (But see FORECITE F 12.61 n6 [Partition Ratios: Evidence Admissible As To Urine Test].)
The machine used in a breath test is designed to convert the percentage of alcohol in the breath to alcohol in the blood by using a blood-to-breath partition ratio of 2100/1 as dictated by the State. (People v. Oliver (89) 215 CA3d Supp 1, 3 [264 CR 89].) While the legislature has not enacted a statutory presumption as to the correct partition ratio, the courts have held that a defendant is presumed to have a 2100/1 blood-to-breath partition ratio, unless he presents evidence to the contrary. (Oliver at 5-6.)
In People v. Herst (87) 197 CA3d Supp 1, 3-4 [243 CR 83], the court held that such contrary evidence is presented by the defense the prosecution may obtain an instruction informing the jury of the presumption.
However, where the defendant presents expert testimony that “a person’s blood-to-breath partition ratio varies over time and does not remain constant, it is error to give the presumption instruction. The fact presumed by the instruction — consistency of one’s partition ratio — is placed in doubt by such testimony.” (People v. McDonald (88) 206 CA3d 877 [254 CR 384]; see also, People v. Lepine (89) 215 CA3d 91 [263 CR 543]; People v. Thompson (89) 215 CA3d Supp 7 [265 CR 105].) The expert testimony need not relate specifically to the defendant’s own petition ratio; general evidence about the variability of this ratio is sufficient. (People v. Lepine 215 CA3d at 98-101.)
Moreover, in People v. Cortes (89) 214 CA3d Supp 12 [263 CR 113], the court found “no basis for a presumption such as implied in Herst.” The Cortes court reasoned that even in the absence of specific partition ratio evidence, a lower partition ratio could be inferred from factors such as the amount of alcohol consumed or the defendant’s driving behavior and field sobriety tests were consistent with sobriety.
Under this analysis the partition ratio presumption violates the defendant’s 14th Amendment federal constitutional right to due process by shifting and lessening the prosecution’s burden of proof as to an element of the charge. [See authorities cited at FORECITE PG VII(C).]
RESEARCH NOTES
See Annotation, Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 ALR4th 155 and Later Case Service.
F 12.61 n4 Drunken Driving (DUI): Defense Burden To Show Blood Test Not Properly Performed.
(See Petricka v. DMV (2001) 89 CA4th 1341, 1348 [107 CR2d 909] [if DMV satisfies prima facie case for DUI, burden shifts to licensee to show that blood test was not properly performed].)
F 12.61 n5 Admissibility Of Blood Alcohol Test That Fails To Comply With Regulations.
People v. Williams (2002) 28 C4th 408, 418 [121 CR2d 854] held that preliminary alcohol screening test results may be admissible at trial despite the lack of compliance with regulations governing such testing. (See Cal. Code Regs., tit. 17, §§ 1215-1221.5.)
F 12.61 n6 Partition Ratios: Evidence Admissible As To Urine Test.
Prior to the amendment of VC 23152(b) in 1990, the defendant was permitted to present expert testimony that a person’s blood-to-breath partition ratio varies over time and does not remain constant. (See FORECITE F 12.61 n3.) However, People v. Bransford (94) 8 C4th 885 [35 CR2d 613], held that because the statute as amended in 1990 defined the offense on the basis of grams of alcohol per 210 liters of breath, any evidence of the partition ratio is irrelevant and, therefore, inadmissible. (Bransford, 8 C4th at 893.)
This analysis, however, is limited to breath or blood tests and does not apply to urine tests because “[t]he statute does not make it a crime to drive with a certain urine-alcohol level.” (People v. Acevedo (2001) 93 C4th 757, 765 [113 CR2d 437].) Hence, defendants may challenge results of urine tests on the basis of variable partition ratios as summarized by the Bransford Court:
“Many variables, however, can affect the actual ratio of an individual’s breath-alcohol concentration to blood-alcohol concentration. These variables include body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. [Citations.] Changes in these variables may result in a difference between an individual’s actual blood-alcohol level and the blood-alcohol level determined by applying the standard partition ratio to the breath-test results.
“Courts therefore allowed defendants charged under the predecessor statute to attack breath-test results on the basis of this variability. Defendants were initially allowed to demonstrate only that their personal partition ratio differed from the standard partition ratio. [Citations.] they would do so by simultaneously measuring their breath-alcohol concentration and blood-alcohol concentration over a period of time. [Citations.] Later courts also allowed defendant to demonstrate that partition ratios differ among individuals generally. [Citations.] Defendant would usually do so by having an expert testify that the standard partition ratio is merely an approximation and that different individuals have different personal partition ratios. [Citations.]” (People v. Bransford, supra, 8 C4th at p. 889.)
Therefore, it is a violation of the 6th Amendment right to confrontation to preclude the defendant from offering partition ratio evidence to challenge a urine test. (See People v. Acevedo (2001) 93 CA4th 757, 765 [113 CR2d 437]; see also Alford v. U.S. (31) 282 US 687, 692 [75 LEd2d 624; 51 SCt 218]; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
F 12.61a
Pinpoint Instruction When Defendant And
Police Blood Alcohol Tests Conflict
*Add to CJ 12.61:
The defendant has introduced evidence for the purpose of showing that the blood alcohol determination by the police was inaccurate because [his] [her] blood alcohol level was really __________ rather than the level reported by the police test.
If, after consideration of all the evidence, you have a reasonable doubt as to the accuracy of the police test, you must give the defendant the benefit of that doubt and find that the police test was incorrect. The inaccuracy of the police test may be sufficient by itself to leave you with a reasonable doubt as to whether the defendant was under the influence.
Points and Authorities
Given that the defendant’s blood alcohol level may raise a presumption of intoxication, the accuracy of the blood alcohol determination is an essential link in the claim of circumstantial evidence which must be proven beyond a reasonable doubt. (People v. Carter (1957) 48 C2d 737, 758-61 [312 P2d 665].) Hence, when the defense theory is that the blood alcohol determination by the police was inaccurate, the defendant should have the right to a pinpoint instruction upon this theory. (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Hall (80) 28 C3d 143, 159 [167 CR 844].) Because it is the prosecution’s burden to prove intoxication, any defense evidence which is offered to negate an element of the charge is sufficient to leave you with a reasonable doubt. (See e.g., CJ 2.40.)
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
PRACTICE NOTES
As to the reasonable doubt language in the last paragraph of the proposed instruction, counsel should consider whether or not to ask for the last sentence which includes the “by itself” language from CJ 2.40. The first sentence alone (“give the defendant the benefit of any reasonable doubt”) may be more acceptable to some judges as it is analogous to language in several standard CALJIC instructions. (E.g, CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)
F 12.61b
Presumptions From And Consideration Of
Blood Alcohol Level Evidence
*Modify CJ 12.61 to provide as follows [added language is capitalized; deleted language is between <<>>]:
THE PROSECUTION IS REQUIRED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT [COMMITTED AN ACT FORBIDDEN BY LAW] [NEGLECTED A DUTY IMPOSED BY LAW WHICH CAUSED BODILY INJURY TO ANY PERSON OTHER THAN [HIMSELF] [HERSELF] WHILE DRIVING A VEHICLE UNDER THE INFLUENCE OF AN [ALCOHOLIC BEVERAGE] [AND] [OR] [DRUG].
THE PROSECUTION IS REQUIRED to PROVE ALL OF THESE ELEMENTS BEYOND A REASONABLE DOUBT INCLUDING THAT DEFENDANT DROVE WHILE UNDER THE INFLUENCE. THIS REQUIRES YOU TO PRESUME THAT THE DEFENDANT WAS NOT UNDER THE INFLUENCE UNLESS THE PROSECUTION PROVES THE CONTRARY BEYOND A REASONABLE DOUBT.
YOU MAY CONSIDER THE DEFENDANT’S BLOOD ALCOHOL LEVEL AT THE TIME OF THE CHEMICAL ANALYSIS OF THE DEFENDANT’S BLOOD, BREATH OR URINE IN DETERMINING WHETHER OR NOT THE PROSECUTION HAS MET ITS BURDEN. HOWEVER, YOU MUST NOT CONSIDER ANY PARTICULAR BLOOD ALCOHOL LEVEL, NO MATTER HOW HIGH, AS CONCLUSIVELY PROVING THAT THE DEFENDANT WAS UNDER THE INFLUENCE.
[If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant’s blood, breath or urine there was <<[0.10%]>> [0.08%] or more by weight of alcohol in the defendant’s blood, you may but are not required to infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.]
IF THE EVIDENCE ESTABLISHES BEYOND A REASONABLE DOUBT THAT AT THE TIME OF THE CHEMICAL ANALYSIS THE DEFENDANT’S BLOOD ALCOHOL LEVEL WAS 0.05% OR MORE BUT FAILS TO ESTABLISH BEYOND A REASONABLE DOUBT THAT IT WAS 0.08% OR MORE, YOU MAY CONSIDER THIS BLOOD ALCOHOL LEVEL, ALONG WITH OTHER COMPETENT EVIDENCE, IN DETERMINING WHETHER OR NOT DEFENDANT WAS UNDER THE INFLUENCE AT THE TIME OF THE ALLEGED OFFENSE.
IF THE EVIDENCE FAILS TO PROVE BEYOND A REASONABLE DOUBT THAT, AT THE TIME OF THE CHEMICAL ANALYSIS, THE DEFENDANT’S BLOOD ALCOHOL LEVEL WAS 0.05% OR MORE, YOU MAY NOT RELY ON THE BLOOD ALCOHOL EVIDENCE TO CONVICT DEFENDANT. YOU MAY, HOWEVER, RELY ON IT TO CONCLUDE THAT THE PROSECUTION HAS NOT MET ITS BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE.
[The failure, if any, to follow the regulations adopted by the California state Department of Health for procedures to be used in administering tests to determine the concentration of alcohol in a person’s blood may be considered by you in determining the accuracy of the test or test results made in this case.]
Points and Authorities
There are two distinct offenses defined by VC 23153. One (VC 23153(a)) requires commission of an unlawful act while driving “under the influence.” The other (VC 23153(b)) requires commission of an unlawful act while driving with a 0.08% or more blood alcohol level. Hence, VC 23153(a) uses a subjective measure of impairment, while VC 23153(b) uses an objective measure. (See Burg v. Muni Court (83) 35 C3d 257, 264-65 [198 CR 145].)
The presumptions set forth in VC 23610(a) (former VC 23155(a)) relate to whether the defendant was “under the influence” and, thus, they are relevant only to a VC 23153(a) charge. (VC 23153(b) sets up a separate presumption applicable to a charge based on the objective (0.08%) measure of impairment.) (See CJ 12.61.1.) Accordingly, even without the statutory presumptions of VC 23610(a) (former VC 23155(a)), when a violation of VC 23153(a) is charged, the prosecution is required to prove beyond a reasonable doubt that the defendant was under the influence. (In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068].) And this, of course, requires the jury to presume that the defendant was not under the influence. (Ibid.)
It is in this context that the presumption in VC 23610 (former VC 23155) should be examined. Thus, VC 23610(a)(3) (former VC 23155(a)(3)) has been interpreted to create only a permissive inference from a blood alcohol of 0.08% or more. (See People v. Milham (84) 159 CA3d 487, 501-05 [205 CR 688]; CJ 12.61.) In other words, even if the prosecution proves beyond a reasonable doubt that the blood alcohol level was 0.08% or more when tested, this is simply one fact which the jury “may” consider in determining whether the prosecution has overcome the underlying presumption that the defendant was not under the influence. (See CJ 12.61.)
Instructing upon the provisions of VC 23610(a)(1) (former VC 23155(a)(1)) (less than 0.05%) and VC 23610(a)(2) (former VC 23155(a)(2)) (more than 0.05% but less than 0.08%) requires caution because the underlying constitutional presumption that the defendant is not under the influence must not be diluted. Because every defendant is presumed not to be under the influence regardless of their blood alcohol level, the jury could well be confused or misled if the instructions imply that a certain blood alcohol level must be present before it can be presumed that the defendant was not under the influence. To avoid this danger, the jury could simply be instructed upon the prosecution’s burden and that the blood alcohol level at the time of testing may be considered without any reference to different levels. (For this alternative, use the first three paragraphs above.)
Otherwise, each reference to a specific blood alcohol level should clearly relate the specific blood alcohol level to the jury’s consideration of the evidence and not imply that the evidence reduces the prosecution’s burden or places any burden whatsoever upon the defendant. (For this alternative, use all seven paragraphs above.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
RESEARCH NOTE: For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
F 12.61c
Presumption Of Innocence Remains Even If
Blood Alcohol Level Is 0.05% Or More
*Add to CJ 12.61:
ALTERNATIVE FORM
If the prosecution proves beyond a reasonable doubt that the defendant’s blood alcohol level was less than 0.08% but more than 0.05%, this fact alone shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense. However, even though the blood alcohol level itself does not give rise to any presumptions, the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt requires you to presume that the defendant was not under the influence until and unless the prosecution proves the contrary beyond a reasonable doubt.
Points and Authorities
VC 23610(a)(2) (former VC 23155(a)(2)) specifically provides that no presumption for or against the defendant being under the influence shall arise from blood alcohol levels which are 0.05% or more but less than 0.08%. The problem with this provision is that the jury is already required to presume that the defendant was not under the influence by virtue of the prosecution’s burden to prove every element of the charge beyond a reasonable doubt. (In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068].) Therefore, even if blood alcohol levels of 0.05% or more but less than 0.08% do not give rise to any statutory presumption, the defendant’s underlying presumption of innocence still remains intact and the jury should be so instructed. In other words, any instruction based on VC 23610(a)(2) (former VC 23155(a)(2)) must be carefully drafted to avoid implying that for blood alcohol levels between 0.05% and 0.08% the prosecution and defense burdens are equally balanced as implied by the statutory language.
NOTES
RESEARCH NOTE: For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
Burden of Proving Blood Alcohol Level. Because the defendant is already presumed not to be under the influence by virtue of the prosecution’s burden to prove guilt beyond a reasonable doubt, this burden would be diluted by placing any preliminary burden upon the defendant to establish that his or her blood alcohol was below a certain level. Rather, it is the prosecution’s burden to prove beyond a reasonable doubt that the level was above 0.08%. (See CJ 12.61.) If the prosection fails to so prove, then the defendant is presumed innocent unless and until the prosection proves beyond a reasonable doubt that he or she was under the influence.
CAVEAT: Even if the blood alcohol level is 0.08% or more, the presumption of innocence — that defendant was not under the influence — remains. Therefore, if there is a possibility that the jury will conclude the blood alcohol level was 0.08% or more, the instructions should not imply that this fact alone relieves the prosecution of its burden to prove the defendant was under the influence. (See FORECITE F 12.61b.)
F 12.61d
Mandatory Presumption From Blood Alcohol Below 0.05%
*Add to CJ 12.61:
Unless the prosecution has proven beyond a reasonable doubt that the defendant’s blood alcohol level was 0.05% or more at the time the defendant’s blood alcohol was tested, you are required to presume that the defendant was not under the influence of alcohol and find [him] [her] not guilty.
If the prosecution has proven that the defendant’s blood alcohol was 0.05% or more but less than 0.08%, the prosecution further has the burden to prove beyond a reasonable doubt that defendant was under the influence of an alcoholic beverage. This burden requires you to presume that the defendant was not under the influence of an alcoholic beverage unless the prosecution proves beyond a reasonable doubt that [he] [she] was.
Points and Authorities
In People v. Gallardo (94) 22 CA4th 489, 495-96 [27 CR2d 502], the court held that VC 23610(a)(1) (former VC 23155(a)(1)) created a rebuttable rather than mandatory presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05%. In so concluding, Gallardo suggested several reasons why logically the statute should be considered a rebuttable presumption. However, Gallardo did not consider the fact that if the statute is read to create a rebuttable presumption, it is meaningless because the defendant is already presumed innocent by virtue of the prosecution’s burden to prove every element of the charge beyond a reasonable doubt. (In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068].) Indeed, any instruction upon such a presumption would simply be restating the prosecution’s burden in a more specific context. Indeed, instruction upon such a presumption could actually dilute the prosecution’s burden of proof since it could imply to the jury that the defendant must prove his or her alcohol level to be below 0.05% before the presumption of innocence would apply.
Therefore, despite the factors discussed by Gallardo, it would be meaningless, and absurd, if not misleading, to instruct the jury that the presumption specified by VC 23610(a)(1) (former VC 23155(a)(1)) is rebuttable. Since statutes must not be interpreted to lead to absurd results (People v. Belleci (79) 24 C3d 879, 884 [157 CR 503]), and since any ambiguity in a statute must be resolved in favor of the defendant (People v. Belmontes (83) 34 C3d 335, 346 [193 CR 882], VC 23610(a)(1) (former VC 23155(a)(1)), must be construed as a mandatory presumption in favor of the defendant.
NOTES
RESEARCH NOTE: For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
F 12.61e
Rebuttable Presumption From Blood Alcohol Below 0.05%
*Add to CJ 12.61 when sub 0.05% blood alcohol is not contested:
You are instructed that you must presume that the defendant was not under the influence of alcohol at the time of the alleged offense. You are bound by this presumption unless the prosecution overcomes the presumption by proof beyond a reasonable doubt to the contrary.
Points and Authorities
VC 23610(a)(1) (former VC 23155(a)(1)) provides that if the defendant’s blood alcohol was less than 0.05% “it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” However, to predicate the presumption upon proof of some other condition precedent, such as a certain blood alcohol level, would dilute the prosecution’s underlying burden to prove all elements of the charge which is not independent upon any condition precedent. (See In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068].) In other words, notwithstanding VC 23610(a)(1) (former VC 23155(a)(1)), it is always presumed that the defendant was not under the influence. An instruction which implies that this presumption only applies when the blood alcohol level is less than 0.05% would, therefore, implicate the defendant’s right to trial by jury and due process. (U.S. Constitution, 6th and 14th Amendments; California Constitution, Art. I § 15 and § 16.) Hence, the above instruction is not conditioned on the 0.05% blood alcohol. Hence, when it is not contested that the defendant had a blood alcohol below 0.05%, the first alternative instruction above should be given since, as a matter of law, the presumption should be applied.
NOTES
RESEARCH NOTE: For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
Practice Note: It has been held that this VC 23610(a)(1) (former VC 23155(a)(1)) creates a rebuttable rather than mandatory presumption. (People v. Gallardo (94) 22 CA4th 489, 495-96 [27 CR2d 502].) In reality the above instruction does nothing more than specifically pinpoint the burden which the prosecution already has to prove all elements of the offense beyond a reasonable doubt. For this reason, it may be argued that to give VC 23610(a)(1) (former VC 23155(a)(1)) effect, the presumption must actually be mandatory. (See FORECITE F 12.61d.)
F 12.61f
No Reliance Upon Less Than 0.05% To Convict
*Add to CJ 12.61:
Unless the prosecution proves beyond a reasonable doubt that the defendant’s blood alcohol level was 0.05% or more, by weight, you may not rely upon the evidence of chemical analysis evidence alone to find that defendant was under the influence at the time of the alleged offense. You may, however, rely upon such evidence to find that the prosecution has not met its burden of proving beyond a reasonable doubt that defendant was under the influence.
Points and Authorities
VC 23610(a)(2) (former VC 23155(a)(2)) provides that if the defendant’s blood alcohol level at the time of testing is 0.05% or more but less than 0.08% the chemical analysis results may be considered with other competent evidence in determining whether the defendant was under the influence of an alcoholic beverage at the time of the alleged offense. VC 23610(a)(1) (former VC 23155(a)(1)), which relates to a blood alcohol level of less than 0.05%, contains no such language but rather provides for a presumption that the defendant was not under the influence.
The fact that VC 23610(a)(2) (former VC 23155(a)(2)) specifically allows the consideration of the blood alcohol level evidence while VC 23610(a)(1) (former VC 23155(a)(1)) omits such a specific authorization suggests, under rules of statutory construction, that the legislature did not intend to allow jury reliance upon a less than 0.05% blood alcohol level to convict. (See Craven v. Crout (85) 163 CA3d 779, 783 [209 CR 649].) Moreover, the very fact upon which the presumption was founded should not be used to overcome the presumption. The legislature could not have intended such an absurd result. (See People v. Belleci (79) 24 C3d 879, 884 [157 CR 503].)
Accordingly, the jury should be instructed so as to require that it not be rebutted by the blood alcohol level analysis itself. That is, the jury may not rely on the blood alcohol level evidence to convict, only to acquit. Any other construction would be at odds with the apparent legislative intent and with common sense.
NOTES
RESEARCH NOTE: For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
Practice Note: It has been held that this VC 23610(a)(1) (former VC 23155(a)(1)) creates a rebuttable rather than mandatory presumption. (People v. Gallardo (94) 22 CA4th 489, 495-96 [27 CR2d 502].) In reality the above instruction does nothing more than specifically pinpoint the burden which the prosecution already has to prove all elements of the offense beyond a reasonable doubt. For this reason, it may be argued that to give VC 23610(a)(1) (former VC 23155(a)(1)) effect, the presumption must actually be mandatory. (See FORECITE F 12.61d.)
