Criminal Defense and DUI Lawyers - California Legal Team

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Case Analysis and Summary

People v. McNeal (2009) 46 Cal.4th 1183 

1.

Key Facts/Procedural Posture 

       After a street police officer observed defendant Timmie Lance McNeal ("Defendant") running two red lights, he pulled him over. The officer observed the Defendant's watery and bloodshot eyes, slurred speech, had the smell of alcohol on his breath and admitted to drinking a beer. An hour after the arrest the Defendant gave a Draeger Alcotest 7110 breathalyzer test that resulted in two valid registered levels of .10, over the legal limit of .08. To produce a valid sample for this machine, the subject must exhale at least 1.5 liters of breath over at least 4.5 seconds. The Defendant was charged with both generic and per se driving under the influence ("DUI"). Veh.Code §23152 (a) and (b). Id. at 1187.   

      At trial after both sides had rested but before closing arguments, defense counsel moved to reopen to present expert testimony about partition ratio variability in connection with the generic DUI charge. The jury convicted on the generic DUI charge but hung on the per se count. Defendant moved for a new trial, arguing he should have been permitted to introduce partition ratio evidence to rebut the presumption that he was under the influence of alcohol. (§ 23610(a)(3). Id. at 1189-1190.  
 


 
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