The Presumption of Under the
Influence Pursuant to Veh.Code §23610(a)(3).
In People v.
Bransford (1994) 8 Cal.4th 885, the high Court held that
percent, by weight, of alcohol in the person's blood shall be based upon grams
of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of
breath.” (§ 23610(b); see People v. Bransford, at p. 890, In the case at
bar, the Defendant whether a defendant who has a blood-alcohol concentration of
0.08 percent or more measured by breath is entitled to rebut the presumption
that he was “under the influence” in a section 23152(a) case by introducing
evidence that use of a 2,100-to-1 partition ratio may have produced an
inaccurate measure of his blood alcohol. People v. McNeal, 46
Cal.4th at 1196. In a generic DUI case, section 23610 creates
a rebuttable presumption that the defendant was under the influence of alcohol
if a chemical test measures his blood-alcohol concentration at 0.08 percent or
higher. By statute, if a chemical test within three hours of driving measures a
driver's blood alcohol at 0.08 percent or more, the driver is presumed to have
been driving “under the influence” of alcohol. Veh.Code § 23610(a)(3). Id. at 1197. The logic of the presumption proceeds as
follows. The Legislature has concluded that most people with a blood-alcohol
concentration at or above 0.08 percent are too impaired to operate a vehicle
safely. Breath tests are a convenient way to measure a suspect's alcohol
consumption, and they can be converted into an equivalent blood-alcohol level
by applying a mathematical ratio. A conversion ratio of 2,100 to 1 is a safe
standard to use because, for most people, it will produce an accurate or
slightly low measure of alcohol in the blood. Evidence that a defendant has a
comparatively low partition ratio would thus tend to show that a blood-alcohol
concentration calculated with the standard 2,100-to-1 ratio overstates the
actual amount of ***273 alcohol in his blood. Evidence showing the defendant
had a low partition ratio, and thus a lower concentration of blood alcohol than
was reported, could also support an inference that he was not under the
influence in violation of the generic DUI law. Id. at 1198-1199.
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