Proposed Instructions Regarding DUI Presumptions Set Forth In VC § 23155(a)

(September 1994)

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to:http://jamespublishing.com/books/fc.htm

    VC § 23155(a) sets forth several presumptions stemming from the defendant's blood alcohol test. While CALJIC has an instruction relating to one of these presumptions (CALJIC 12.61) no instruction is provided for the other presumptions. Moreover, no instruction sets forth the relationship among the different blood alcohol levels established in the statute. The following proposed instructions attempt to explain the statutory presumptions to the jury.

CAVEAT: Any instruction on a presumption must be drafted in light of the fundamental constitutional principle that the prosecution must prove its case beyond a reasonable doubt. The instructions must not undermine or dilute the underlying requirement that the jury presume the defendant did drive while intoxicated unless and until the prosecution proves beyond a reasonable doubt to the contrary.

Research Note: For general form instructions relating to presumptions, see Deerings Annotated Evidence Code § 600, et seq.

*Modify CJ 12.61 to provide as follows [added language is underlined; deleted language is lined out]:

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.

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 § 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 § 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].) 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 § 23155 should be examined. Thus, 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 § 23155(a)(1) (less than 0.05%) and 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, 1 FORECITE Practice Guide § VII.]

Points and Authorities

    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].) 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 § 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.

    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 prosecution fails to so prove, then the defendant is presumed innocent unless and until the prosecution 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 3 FORECITE F 12.61b.)

Points and Authorities

    In People v. Gallardo (94) 22 CA4th 489, 495-96 [27 CR2d 502], the court held that 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, Gallardosuggested 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].) 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 § 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 § 23155(a)(1), must be construed as a mandatory presumption in favor of the defendant.

    When sub 0.05% blood alcohol is not contested:

Points and Authorities

    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].) In other words, notwithstanding 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.

    Practice Note: It has been held that this 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 § 23155(a)(1) effect, the presumption must actually be mandatory. (See 3 FORECITE F 12.61d.)

*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 § 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 § 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 § 23155(a)(2) specifically allows the consideration of the blood alcohol level evidence while 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 877, 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.

RETURN TO TABLE OF CONTENTS