LEGAL GUIDE
Written by attorney George Fredrick Mueller | Apr 26, 2010

Alcohol Level .07% or Less Yet Still Arrested in California for DUI / DWI, How?

DUI Criminal Defense Attorneys hear California state toxicologists routinely testify folks can be impaired at .05% BAC or more (rather than the legal limit of .08% or more BAC). What? Non-commercial adult driver arrested for a California DUI with lower than .08% BAC encounter DUI police "conclusions" that even small amounts of alcohol cause impairment.

DUI criminal defense lawyers discuss jury instructions for drunk driving trials. Criminal Jury Instruction Number 2110. Driving Under the Influence (Cal. Veh. Code, § 23152(a)(e)(f) ) A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence. If the People have proved beyond a reasonable doubt 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 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. The above paragraph that begins with "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent" explains a rebuttable presumption created by statute. (See Veh. Code, § 23610; 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 bracketed paragraph that begins with "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent" 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. In addition, if the test falls within the range in which no presumption applies, 0.05 percent to just below 0.08 percent, do not give this bracketed sentence. (People v. Wood (1989) 207 Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider whether there is sufficient evidence to establish that the test result exceeds the margin of error before giving this instruction for test results of 0.08 percent. (Compare People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4-5 [188 Cal.Rptr. 366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr. 378].)

If you are under .05, there is a jury instruction (below) that you are presumed

not to be under the influence of alcohol. The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the facts of the case, the defendant may be entitled to a pinpoint instruction on this presumption. It is not error to refuse an instruction on this presumption if the prosecution's theory is that the defendant was under the combined influence of drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32 Cal.Rptr.2d 442].) If the evidence demonstrates that the person administering the test or agency maintaining the testing device failed to follow the title 17 regulations, give the bracketed sentence 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] [same].)

So the prospect of a DUI conviction depends on the specific facts of each case.

Remember that a lower concentration of alcohol in your blood can still purportedly mean you are under the influence or impaired.

DUIs are potentially costly in terms of fines, court-imposed fees, insurance rates, ignition interlock devices, vehicle impounds, public work service, alcohol programs, and the biggest fear - custody. Folks hire DUI criminal defense attorneys to contest their Drunk Driving charges to save their driver's licenses.

DUI cops often do not only use numbers from a breath test gadget to decide if a person is under the influence of alcohol (and/or drugs) or is impaired. A DUI officer frequently believes, even before doing a breath test, that the driver should be arrested for a DUI.

Observations involving one's lack of balance, questionable speech, ability to follow directions, basic motor skills, and type of driving are variables that go into an opinion of being under the influence of something.

DUI laws complicate matters. Each state has its own laws.

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