Defense Theory: BAC of Less than 0.05% Warrants Rebuttal Presumption That Defendant Was Not Under the Influence
November 27th, 2015

VC § 23610(a)(1), provides “[i]f there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” Thus, there is a statutory presumption that a defendant was not under the influence of alcohol at the time of the driving if the defense shows that the defendant’s blood alcohol level at that time was less than 0.05%. Since CC 2111 includes the presumption that the defendant was driving under the influence of alcohol if the prosecution shows that the defendant was driving at or above 0.08% blood alcohol, reciprocity and simple fairness call for the defense to receive a jury instruction that the defendant is presumed not to have been under the influence of alcohol if the defense shows that the blood alcohol reading was less than 0.05%.

 

If the defense has proved by a preponderance of the evidence that a sample of the defendant’s (blood/breath) 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 less than 0.05 percent, you may, but are not required to, conclude that the defendant was not under the influence of an alcoholic beverage at the time of the alleged offense.


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