SAN DIEGO DUI DEFENSE: TRIAL COURT SHOULD NOT HAVE ADMITTED EVIDENCE IN DUI RE-TRIAL
in a well-reasoned, but unexpected move by the California Fourth District Court of APpeal, DIvision One, the Court reversed a DUI conviction because the trial court let in "evidence" that it should not have.
In a DUI case where the jury in the first trial acquitted defendant for a "per se DUI" (driving with BAC of .08 or more) offense but could not reach a verdict regarding defendant's generic DUI offense, conviction for generic DUI in a second jury trial is reversed where collateral estoppel principles were violated in: 1) permitting the second jury to consider the issue of whether defendant drove with a BAC of .08 or more; and 2) instructing the jury that a BAC of .08 or more creates a permissive presumption of a "generic DUI" offense when the jury should have been instructed to presume defendant's BAC level was less than .08
People v. Smith, No. D049993
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