Tag Archives: CC 2111

Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It
September 14th, 2018

It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge.  (See e.g., Martin v. Ohio (87) […]

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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 […]

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Presumption of Intoxication: Expert Testimony
November 23rd, 2015

The evidence must support the permissive inference to authorize instructions on it. Therefore, unless an expert explains how the later tests could be consistent with a BAC of 0.08 percent at the time of defendant’s stop, there may be insufficient evidence to support the instruction. (See People v. Beltran (2007) 157 Cal. App. 4th 235, […]

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