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Admissibility of Partition Ratio Evidence

MOTIONS IN LIMINE:Other Creative Motions

I. RELEVANT EVIDENCE MAY NOT BE EXCLUDED

“Except as provided by statute hereinafter enacted by a two-thirds vote of the legislature, relevant evidence shall not be excluded in any criminal proceeding;…” (Cal.Const., Art. I, §28)

  1. Partition ratio evidence is relevant to the charge of driving under the influence [V.C. 23152(a)] and would show the jury that a breath test overstates the driver’s true B.A.C. at the time of the test if the breath test is administered while the subject is in the absorptive phase. The defendant must be able to present this evidence in order to present a defense to “under the influence” as alleged in Count I. [It is conceded the evidence is not admissible to Count II, V.C. 23152(b)]. The prosecution wants to use a presumption as to Count I which states that if there is a chemical test with .08% or more, the jury may infer the Defendant was under the influence at the time of driving. (See CalJIC 12.61) People v. Bransford (1994) 8 Cal.4th 885, which eliminated ratio evidence, does not apply to driving under the influence, but only to driving with .08% or higher.
  2. Barring the defendant from introducing partition ratio evidence as to Count I, which would explain why the Defendant’s blood alcohol content was lower than .08% as applied to “under the influence” would constitute a denial of the Constitutional rights of crossexamination, equal protection, and due process.

II. DUE PROCESS INSURES THE DEFENDANT’S RIGHT TO PRESENT “EVIDENCE” IN HIS DEFENSE

A defendant charged with criminal violations has a federal guaranteed right to present evidence and witnesses in his behalf. (Taylor v. Illinois 484 U.S. 400, 408 (1988); Chambers v. Mississippi 410 U.S. 284, 302 (1973).) “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” [Citation.] (People v. Jones (1998) 17 Cal.4th 279, 305.) The right to a fair trial as a due process concern is found in the Fourteenth Amendment to the United States Constitution. “… a judge, as well as a prosecutor, can improperly interfere with an accused’s right to a fair trial. (Id. at p. 788, 278 Cal.Rptr. 237.)” (Reid v. Superior Court (1997) 55 Calliope.4th 1326, 1332.)

III. V.C. §13610 PROVIDES FOR THE ADMISSION OF “OTHER COMPETENT EVIDENCE BEARING UPON…” WHETHER THE DRIVER WAS UNDER THE INFLUENCE AT THE TIME OF THE ALLEGED OFFENSE

The prosecution will request an instruction, CalJIC 12.61, which is a presumption of intoxication based on a test of .08% or more in an attempt to prove the driver was under the influence. V.C. §23610(c) states that the law dealing with presumptions of blood alcohol does not limit “the introduction of any other competent evidence bearing upon the question of whether the person… was under the influence of an alcoholic beverage at the time of the alleged offense.” “Partition ratio evidence” bears upon the question of whether the defendant was really a .08% or more, i.e., was under the influence of an alcoholic beverage at the time he drove. Such evidence is expressly permitted by the statute dealing with the presumptions.

IV. “PARTITION RATIO EVIDENCE” IS RELEVANT TO DRIVING “UNDER THE INFLUENCE”, V.C. §23152(a)

The prosecution will introduce a breath test result to prove the defendant’s blood alcohol concentration at the time of the test, and by inference, at the time of driving, and also as evidence that the defendant was “under the influence” of alcohol at the time of driving. (See CALJIC 12.61: Inference of Intoxication – permissive inference that defendant is under the influence if test of .08% or higher blood alcohol content.) Partition ratio evidence can establish that the breath testing device overstates a person’s true B.A.C. if the subject was absorbing alcohol (absorptive phase) at the time of the driving. This evidence is relevant to controvert the People’s evidence on Count I.

Attached hereto as Exhibit “A” is a copy of the Supreme Court of Vermont’s decision in State v. Hanks, 772 A.2d 1087, which held the use of partition ratio evidence is required in a DUI case where the defendant is charged, as in this case, with a charge of driving under the influence of alcohol and the per se violation. The Vermont statutory scheme is the same as California’s. The Hanks court discussed the California case of People v. Bransford (1994) 8 Cal.4th 885 and expressly stated that the Bransford court did not decide the ratio issue with regard to the driving under the influence charge of V.C. §23152(a). The Hanks court correctly reasoned that Bransford rule excluding ratio evidence applies only to the charge of violation of Vehicle Code §23152(b), the per se law which prohibits a .08% or more amount whether measured by blood or breath.

The issue of whether the exclusion of partition ratio evidence constituted a denial of the right of cross-examination in relation to Vehicle Code §23152(a) was not discussed in Bransford. (See fn. 10.) The Bransford court held it’s a crime to drive with a .08% or higher, whether measured by blood or by breath. The court did not address whether “ratio” evidence can be considered as to “under the influence”, a different charge than the “per se” allegation.

In the case of People v. Acevedo, (2001) 93 Cal.App.4th 757, the court discussed the exclusion of partition ratio evidence where a defendant is charged with violations of V.C. §§23152(a) and (b). The case involved a urine test. The Court discussed the line of cases which have dealt with “ratio” evidence and concluded that the exclusion of partition ration evidence constituted a denial of the Constitutional right of cross-examination. The Acevedo Court discussed People v. Bransford and stated with respect to prior case law:

“The court in Bransford did not disapprove of the above line of cases; it merely found they were no longer applicable when the defendant was charged with violation of Vehicle Code §23152 subdivision (b) and sought to challenge the partition ratios of breath tests.”

After finding that excluding the partition ratio evidence in regard to the subdivision (b) constituted a denial of the right of cross-examination and such denial was prejudicial, the Acevedo Court stated, at page 772, “That Defendant “was also prejudiced as to the driving under the influence count (Veh. Code §23152(a)).”

“The Sixth Amendment guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137. The right of confrontation, “means more than being allowed to confront the witness physically.” Id. Indeed, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Id. This last right was strengthened by the U.S. Supreme Court in Crawford.

V. THE STATUTORY SCHEME DEALING WITH THE “PRESUMPTION” ALLOWS EVIDENCE TO REBUT THE PRESUME FACT

E.C. §600(a) states that “…a presumption is not evidence.” Further, E.C. §607 dealing with presumptions in a criminal case expressly states that “the defendant need only raise a reasonable doubt as to the existence of the presumed fact (that the jury may, but is not required to, infer that the driver was under the influence if you find that there was a chemical test result of .08% or more within 3 hours of driving).” The use note states in E.C. §607 “that a presumption if rebutted by any evidence that raises a reasonable doubt as to the presumed fact.” “The defendant does not have the burden to disprove of disproof on the presumed fact by a preponderance of the evidence…”

The use note to E.C. §607 refers to E.C. §604. The comment to E.C. §604 states that a presumption “is merely a preliminary assumption in the absence of contrary evidence.” If contrary evidence is introduced that would support a finding of the non-existence of the presumed facts, the trier of fact shall determine the issue “from the evidence and without regard to the presumption.”

The jury instruction fo the “presumption” of a person with a blood alcohol content of .08% or greater being “under the influence” of intoxicating liquor will be requested by the People. The defendant is entitled to raise a “reasonable doubt” as to the existence of the presumed fact. Evidence of partition ratio variability has long been used in this state to rebut this presumption in the §23152(a) context. See People v. Campos 188 Cal.Rptr. 366 (1982). It is clear, under both Acevedo and Hanks, that Bransford does not render this evidence inadmissible to defend against §23152(a) prosecutions.

VI. RATIO EVIDENCE MUST BE ALLOWED

The California Constitution states that all relevant evidence shall be admitted. Partition evidence is relevant to the charge of V.C. 23152(a), driving under the influence. This defendant is entitled to a fair trial. This driver has the constitutional protections of the right to present evidence, right of cross examination, equal protection, and due process of law. An appropriate instruction limiting the ratio evidence to the charge of driving under the influence of alcohol, V.C. 23152(a) can be prepared.