CALIFORNIA DRUNK DRIVING-PERMISSIVE INFERENCE INSTRUCTION-CONVICTION REVERSED
Even though a court may instruct with CALJIC 12.61.1 which allows the jury to infer that a defendant had a BAC of at least .08% if the test administered within three hours of the stop reveals BAC of .08 or more even if evidence is conflicting... because it only establishes a permissive inference, here there was no rational connection between proved fact and fact to be inferred to justify instruction.
Prejudicial error requires reversal of .08 conviction.
Both prosecution and defense experts opined that defendant's BAC at the time of driving was between .068 to .095 (prosecution) and .06 (defense)/ Therefore, there did not exist proof beyond a reasonable doubt (the requirement when permissive inference is sole evidence used to convict) because the PAS and intoxilyzer taken together indicated that defendant's BAC was rising. "This circumstance is a classic example of the well-recognized defense in DUI cases known as the 'rising blood-alcohol' defense. (Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 55; Taylor, California Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, ยง 11.1.1, pp. 610-611.)
People v. Beltran (C.A. 1st, 11/27/07, A116944) 07 C.D.O.S. 13484
