performance of a chemical test in California

2021(See Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740 .) While the Supreme Court has not definitively determined whether the presumption applies in administrative per se hearings (Coffey, supra, 60 Cal.4th at p. 1209 ), the law is clear that, if a defendant offers evidence sufficient to rebut the presumption, the Department is required to prove a driver’s blood alcohol content at the time she was driving without resort to the statutory presumption.

2017(See *267 Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730 , 740, 27 Cal.Rptr.2d 712 ( Jackson ).) Although the Supreme Court has not decided the issue (see Coffey , supra , 60 Cal.4th 1198 , 185 Cal.Rptr.3d 538 , 345 P.3d 896 ), we follow Court of Appeal precedent concluding that the rebuttable presumption codified in section 23152, subdivision (a) applies to administrative per se proceedings because neither party makes any argument to the contrary. 2.

2015(See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 236 [ 54 Cal.Rptr.2d 634 ], citing Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740, fn. 9 [ 27 Cal.Rptr.2d 712 ], and Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-313 [ 13 Cal.Rptr.2d 830 ].) Extending the reach of section 23152, subdivision (b)’s evidentiary presumption to administrative per se proceedings would be consistent with the legislative history of that provision.

2015(See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 236 [ 54 Cal.Rptr.2d 634 ], citing Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740, fn. 9 [ 27 Cal.Rptr.2d 712 ], and Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-313 [ 13 Cal.Rptr.2d 830 ].) Extending the reach of section 23152, subdivision (b)’s evidentiary presumption to administrative per se proceedings would be consistent with the legislative history of that provision.

2022The last sentence in subdivision (b) of Vehicle Code section 23152 provides in full: “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”8 The statute’s use of the word “prosecution” was noted by the Supreme Court in Coffey and, like the parties, the court assumed an administrative proce

2022The last sentence in subdivision (b) of Vehicle Code section 23152 provides in full: “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”8 The statute’s use of the word “prosecution” was noted by the Supreme Court in Coffey and, like the parties, the court assumed an administrative proce

2020Code, § 604) the presumed fact.” (Coffey, at p. 1210.) “[I]f evidence sufficient to negate the presumed fact is presented, the ‘presumption disappears’ [citation] and ‘has no further effect’ [citation], although ‘inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place’ [citations].” (Ibid; cf. Beltran, supra, 157 Cal.App.4th at pp. 246-247 [prejudicial error to instruct jury on permissive inference where experts on both sides agree blood alcohol is rising at time of first alcohol screening test].) Beltran is inapposite because “the

2020Code, § 604) the presumed fact.” (Coffey, at p. 1210.) “[I]f evidence sufficient to negate the presumed fact is presented, the ‘presumption disappears’ [citation] and ‘has no further effect’ [citation], although ‘inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place’ [citations].” (Ibid; cf. Beltran, supra, 157 Cal.App.4th at pp. 246-247 [prejudicial error to instruct jury on permissive inference where experts on both sides agree blood alcohol is rising at time of first alcohol screening test].) Beltran is inapposite because “the

2023(People v. Wood (1989) 207 Cal.App.3d Supp. 11, 15 [“‘It is error to give an instruction which correctly states a principle of law which has no application to the facts of the case’”].) There is no bracketed portion of CALCRIM No. 2100 (or any other pattern jury instruction) that references the presumption that operates against the prosecution (BAC of less than .05 percent) or the neutral presumption (BAC of from .05 to less than .08 percent).

2023The court quoted Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda), for the proposition that “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the 9 administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” The court noted that Vehicle Code section 23152, subdivision (b) provides a “rebuttable presumption” that a person had 0.08 percent or more, by weight, of alcohol in his or her

2016(People v. McNeal (2009) 46 Cal.4th 1183, 1199 [section 23610 permits, but does not require, the jury to infer the defendant was under the influence if he had a BAC of 0.08 percent or more]; People v. Milham (1984) 159 Cal.App.3d 487, 505 [a permissive inference leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof to the defendant; no burden may be placed on a criminal defendant to prove the nonexistence of the presumed fact by raising a reasonable doubt as to its existence]; see People v. McCall (2004) 32 Cal.4th 175, 182-183 [permissive “pres

2016(People v. McNeal (2009) 46 Cal.4th 1183, 1199 [section 23610 permits, but does not require, the jury to infer the defendant was under the influence if he had a BAC of 0.08 percent or more]; People v. Milham (1984) 159 Cal.App.3d 487, 505 [a permissive inference leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof to the defendant; no burden may be placed on a criminal defendant to prove the nonexistence of the presumed fact by raising a reasonable doubt as to its existence]; see People v. McCall (2004) 32 Cal.4th 175, 182-183 [permissive “pres

2016(People v. McNeal (2009) 46 Cal.4th 1183, 1199 [section 23610 permits, but does not require, the jury to infer the defendant was under the influence if he had a BAC of 0.08 percent or more]; People v. Milham (1984) 159 Cal.App.3d 487, 505 [a permissive inference leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof to the defendant; no burden may be placed on a criminal defendant to prove the nonexistence of the presumed fact by raising a reasonable doubt as to its existence]; see People v. McCall (2004) 32 Cal.4th 175, 182-183 [permissive “pres

2015(See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 236 [ 54 Cal.Rptr.2d 634 ], citing Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740, fn. 9 [ 27 Cal.Rptr.2d 712 ], and Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-313 [ 13 Cal.Rptr.2d 830 ].) Extending the reach of section 23152, subdivision (b)’s evidentiary presumption to administrative per se proceedings would be consistent with the legislative history of that provision.

2015(See Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 236 [ 54 Cal.Rptr.2d 634 ], citing Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 740, fn. 9 [ 27 Cal.Rptr.2d 712 ], and Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 310-313 [ 13 Cal.Rptr.2d 830 ].) Extending the reach of section 23152, subdivision (b)’s evidentiary presumption to administrative per se proceedings would be consistent with the legislative history of that provision.

2002Here, on the question of whether the accident occurred within three hours before the blood test was administered at 2:15 a.m., the trial court stated: “It appears to me that all the evidence and the reasonable inferences that can be drawn from that evidence are that the accident occurred sometime prior to 11:57 but at or near that time . . . .” Appellant cites Santos v. Department of Motor Vehicles (1992), 5 Cal.App.4th 537, 549-550 [ 7 Cal.Rptr.2d 10 ], and Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 660 [ 14 Cal.Rptr.2d 225 ], in which the DMV submitted absolutely no evidence to establish

2002Here, on the question of whether the accident occurred within three hours before the blood test was administered at 2:15 a.m., the trial court stated: “It appears to me that all the evidence and the reasonable inferences that can be drawn from that evidence are that the accident occurred sometime prior to 11:57 but at or near that time . . . .” Appellant cites Santos v. Department of Motor Vehicles (1992), 5 Cal.App.4th 537, 549-550 [ 7 Cal.Rptr.2d 10 ], and Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 660 [ 14 Cal.Rptr.2d 225 ], in which the DMV submitted absolutely no evidence to establish

2002Here, on the question of whether the accident occurred within three hours before the blood test was administered at 2:15 a.m., the trial court stated: “It appears to me that all the evidence and the reasonable inferences that can be drawn from that evidence are that the accident occurred sometime prior to 11:57 but at or near that time . . . .” Appellant cites Santos v. Department of Motor Vehicles (1992), 5 Cal.App.4th 537, 549-550 [ 7 Cal.Rptr.2d 10 ], and Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 660 [ 14 Cal.Rptr.2d 225 ], in which the DMV submitted absolutely no evidence to establish

2002Here, on the question of whether the accident occurred within three hours before the blood test was administered at 2:15 a.m., the trial court stated: “It appears to me that all the evidence and the reasonable inferences that can be drawn from that evidence are that the accident occurred sometime prior to 11:57 but at or near that time . . . .” Appellant cites Santos v. Department of Motor Vehicles (1992), 5 Cal.App.4th 537, 549-550 [ 7 Cal.Rptr.2d 10 ], and Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 660 [ 14 Cal.Rptr.2d 225 ], in which the DMV submitted absolutely no evidence to establish

1993We recently held to the contrary. ( Burge v. Department of Motor Vehicles (1992) 5 Cal. App.4th 384, 391 [ 7 Cal. Rptr.2d 5 ]; and see Bell v. Department of Motor Vehicles (1992) 11 Cal. App.4th 304, 310-314 [13 Cal.Rptr 2d 830].) (8b) Appellant argues that there was no evidence rebutting his own testimony that the intoxilyzer was malfunctioning and the test was performed improperly.

1993We recently held to the contrary. ( Burge v. Department of Motor Vehicles (1992) 5 Cal. App.4th 384, 391 [ 7 Cal. Rptr.2d 5 ]; and see Bell v. Department of Motor Vehicles (1992) 11 Cal. App.4th 304, 310-314 [13 Cal.Rptr 2d 830].) (8b) Appellant argues that there was no evidence rebutting his own testimony that the intoxilyzer was malfunctioning and the test was performed improperly.