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Burden of Proof – Breath Test

JURY INSTRUCTIONS:Special Instructions

People Must Prove the Preliminary Facts of Foundation or Jury Must Disregard The Breath Test Results

Evid. Code §403(c);People v. Williams, (2002) 28 Cal.4th 408; See Memo of Law in Support of Jury Instruction under Evidence Code §403(c) supplied herewith.

You are instructed that the People have the burden of proof regarding the preliminary facts relative to the breath test results. In determining whether the results of the breath test may be considered by you, you shall determine whether the prosecution has proved each of the following three foundational elements:

  1. The particular machine utilized for analysis of the breath sample was in proper working order at the time of the test;
  2. The breath test was properly administered and proper procedures were followed; and
  3. The operator was properly trained, competent, and qualified. If the prosecution has not unanimously convinced you beyond a reasonable doubt of each of these three preliminary facts, you must disregard the breath test.