Bransford Changes "Per Se" DUI Law in California. 

      In California, the Bransford Court came to a different conclusion and changed the law in overruling prior California Court of Appeal cases to the contrary. The Bransford Court

reviewed and considered the plain meaning of several amendments to California's "Per Se DUI" statute California Vehicle Code section 23152(b); a statute that added blood alcohol language to the codified 0.08 blood-alcohol language by amendment.  For those charged after September 26, 1992, the breath-based language is applicable to California Vehicle Code sections 23152-23229.1, and §34501.16. However, if the California Department of Motor Vehicles Director does not notify the Secretary of State that Federal regulations no longer require the breath-test language; and if so notified the statute returns to its previous wording. California Vehicle Code  section 23152(e).  ² In the Bransford Court's interpretation of the language "in a person's blood," it concluded that the Legislature's language  driving ...with the specified breath-alcohol level," was a rewrite of the clear statutory language that codifies a new crime of driving with 0.08 percent or more alcohol in 210 liters of breath. The effect of this statutory revision negates the need of the government of the difficulty of proving an illegal blood alcohol concentration on the basis of a breath test alone. With the assistance of the Bransford Court, the specified breath alcohol concentration alone is sufficient for a conviction.  The likelihood of conviction is increased because actual impairment is not an element of the offense, resulting in fewer legal issues and the need for judicial resources.³  

      The Bransford dissent⁴ points out that the law, stare decisis and the facts were necessarily ignored. Both defendants had been charged with driving with 0.08 percent or more alcohol in the blood, but never mentioned breath tests, meaning the defendant's convictions were upheld  despite never being charged with that newly created crime.  While declaring that proof of a specific breath alcohol level is conclusive proof of the same blood alcohol level was prohibited by the U.S. Constitution,⁵ the Bransford Court made an end-run of this prohibition by holding that breath alcohol is not presumed to be the same as blood alcohol; rather, the breath-based offense pursuant to California Vehicle Code section 23152(b) prohibited the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath. This was a clear "definition" of blood alcohol and breath alcohol as synonymous, and not a conclusion.  However, it remains obvious that the new language is either a conclusive presumption prohibited by the U.S. Constitution, vaguely defining the required proof a breath-based drunk driving offense, or a fair trial is denied on due process grounds when a conviction results from a breath-alcohol crime he wasn't charged with.   Other implications are: the refusal to allow blood/breath partition ratio evidence violates the Federal Constitution; and the 6^th Amendment's Confrontation Clause and 14^th Amendment due process right of those taking breath tests in DUI cases to present evidence and defend themselves adequately.  More disturbingly, the ultimate message to trial courts is that stare decisis may be disregarded and superseded by the need to obtain convictions and tack as many skins to the wall as possible.  Subsequently, Bransford was distinguished by People v. Ireland (1995) 33 Cal.App.4th 680. In Ireland, an equal protection argument survived, but rather diminished.  Id. at 695.  It also clarified the 1991 amendment pertained to the blood-alcohol ratio application only when a blood test is taken, and the breath-alcohol ratio application when a breath test is taken regardless of their conversion values. Id. at 692.