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.
