Just last month Matt won a DMV Hearing involving a .18 Breath Test Result because he argued the DMV could not prove the sample was collected within 3 hours of the time of driving. (See actual decision below)
What is the 3 hour presumption rule? California Vehicle Code 23152, subdivision (b), states, “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”
How can this statute be used for the benefit of a defense in a DUI case? Here is the scenario: You were found asleep, passed out in your case with the engine running but the car was not seen moving. A police officer contacts you and smells alcohol on your breath and asks you to get out of the car. You comply and the officer performs an eye test on you and requests you to submit to field sobriety tests.
You either fail or refuse and the officer subsequently arrests you, confiscates your drivers license and tells you to submit to a breath or blood test. You either provide a breath or blood sample which reveals a BAC of .08 or more and you are booked for driving under the influence. There are no witnesses to you driving and you make an admission to driving to the scene but do not provide any statements of how long you have been there or what time you were driving. How can this case be defended?
First, you must understand that “driving” in California is defined as the volitional movement of a vehicle. A parked vehicle, even where the engine is running and in drive with your foot on the brakes, is not “driving” because the vehicle was not moving.
In this hypothetical the legal argument is that the accused cannot be deemed to have been driving with a .08 or more because the time of driving is unknown. In other words, there is insufficient evidence that the reported BAC was the person’s actual blood alcohol level because the time of driving has not been determined. Remember, the law in California only gives the prosecution (whether it be the DMV or the District Attorney) a presumption that the test results are reflective of the driver’s BAC at the time if the sample was collected within 3 hours of the time of driving. (See VC23152b, Supra)
California EVID. CODE §600 sets forth: “a presumption may not be applied unless the necessary facts justifying application of the presumption have been established. The prosecution bears the burden of proving the accused’s driving time in order to justify application of the three-hour presumption.
In this hypothetical case it would be improper for the DMV to sustain a finding your were driving with a BAC of .08 or more because there are no “facts” or evidence to establish the time of driving and therefore a set aside of any license suspension would be in order. In addition, in Court the prosecution would need to lay a foundation your BAC was your true level at the time of driving and this would be challenging.
The California Supreme Court has held that a jury instruction phrased as a rebuttable presumption in a criminal case creates an unconstitutional mandatory presumption. (See People v. Roder (1983) 33 Cal.3d 491, 497-505). In accordance with Roder, the instructions have been written as “permissive inferences” instead of rebuttable presumptions.
Torrance DUI Attorney Matthew Ruff can be reached by phone to discuss specific legal issues regarding California laws on drunk driving, the consequences of DUI and penalties.
