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Memo of Law in Support of EC 403

JURY INSTRUCTIONS:Points and Authorities


  1. IN ORDER TO ADMIT A CHEMICAL TEST FOR ALCOHOL, THE PROSECUTION MUST SHOW THAT “CORRECT SCIENTIFIC PROCEDURES” WERE FOLLOWED The California Supreme Court in People v. Williams (2002) 28 C.4th 408 held that for a chemical test to be admissible the proponent must “demonstrate that correct scientific procedures were used in the particular case.” The Williams’ court authorized “admitting breath test evidence after a showing of (1) reliability of the instrument, (2) the proper administration of tests and (3) the competence of the operator.” Also, in People v. Kelley(1976) 17 Cal.3d 24, 30, the California Supreme Court stated that the reliability of scientific evidence must be demonstrated, i.e., the proponent “must demonstrate that correct scientific procedures were used in a particular case.”The Williams’ court concluded that chemical test results are admissible upon the showing of either compliance with Title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator…” In footnote 6, the Williams’ court noted that if the people did not establish the three required foundational elements (or compliance with Title 17) the test results are inadmissible. The Williams court ruled that all three foundational elements must be established for the evidence to be admissible; the chain is not stronger than its weakest link.”The Williams’ court correctly analyzed that in People v. Adams (1976) 59 C.A.3d 559 1 there was only a minor or technical violation of Title 17 (testing of the machine must be done every hundred subjects or weekly and the results must be reported to a licensed laboratory.) And, in footnote 5, Williams’ observed that there was “no challenge in Adams to the admission of the test or the qualifications of the operator” and the defendants did not “attempt any showing that the non-compliance affected the test results in any way, let alone rendered the results inaccurate.” The defense contends in this case that there are issues of proof re the reliability of the test results and compliance with “correct scientific principles.”
  2. THE RELIABILITY OF A CHEMICAL TEST RESULT IS A MATTER OF RELEVANCE The Williams’ court noted that foundational facts “will insure that the tests retain their reliability and thus their relevance and admissibility…” The Williams’ court reasoned that “… admissibility depends on the reliability and consequent relevance of the evidence…” Thus, the California Supreme Court held that chemical test results must be reliable to be admitted or else they are not relevant.
  3. EVIDENCE CODE §403(a) REQUIRES THE PROPONENT TO PRODUCE “SUFFICIENT EVIDENCE” AS TO THE PRELIMINARY FACTS OR THE EVIDENCE IS INADMISSIBLE E.C. §403 determines foundation and other preliminary facts where relevancy is disputed. Under §403(a) “the proponent of proffered evidence has the burden of producing evidence as to the existence of the preliminary fact and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when the relevance of the proffered evidence depends on the existence of the preliminary fact. A proffered chemical test result is inadmissible unless there is sufficient evidence to demonstrate that the test was properly administered, the personnel involved in the test were qualified, and that the testing device was in proper working order and accurate.


“Evid. C. §310 provides that all questions of law, including the admissibility of evidence, are to be decided by the court in accordance with Evid. C. §§400-406.” “Jefferson, Cal.Evid. Benchbook, 3d Ed., Vol. I, §23.4. “…Preliminary fact issues should be finally decided by the jury and not by the judge.” Jefferson, Id., § 23.5. “For the preliminary fact issues set forth in Evid. C. §403,” the proponent must persuade the judge that there is “sufficient evidence” to justify a finding by the trier of fact that the preliminary fact exists. Jefferson, Id., §23.6. “…The jury, not the trial judge, resolves conflicts in the evidence …” Jefferson, Id. §23.6. 2


Under Evid. C. §403(c) if the court admits the proffered evidence of the chemical test result (i.e., finds there is sufficient evidence of the preliminary facts), the court:

“May, and on request shall, instruct the jury to determine whether the preliminary facts exist and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”

The relevance of the test results depends on the existence of proof of preliminary facts, i.e. that correct scientific procedures were followed. The defendant requests special jury instruction #1, which mirrors the language E.C. 403(c) and is tailored to the evidence in this case. Special instruction #1 informs the jury that it must determine whether correct scientific procedures (preliminary facts) have been proved and that the jury must “disregard the proffered evidence unless …” it finds that those foundational elements have been proved. The accuracy of the blood test result is a matter of relevance per Williams, supra, and Evid.C. §403(3) requires that the jury must be instructed as [per special #1] that it “shall disregard” the blood test results if the prosecution did not prove that correct procedures were followed.


The defense has introduced evidence tends to prove the nonexistence of the presumed facts, i.e. that the defendant was a .08% or higher at the time of driving. Evid. C. §607 requires that the jury must be convinced beyond a reasonable doubt that the basic facts exist and may find the presumed fact (permissive inference) only if the jury is convinced beyond a reasonable doubt that that presumed fact has been proven.

The leading author on evidence in California, Justice Jefferson, states:

“If the prosecution invokes a presumption affecting the burden of proof to establish a presumed fact that is an essential element of the offense charged against the defendant in a criminal action, the presumption operates as set forth in §§46.50-46.51.” See Jefferson, Cal.Ev. Benchbook, 3d. ed., Vol. II, §46.49

The basic fact of the chemical test gives rise to presumptions affecting the burden of proof [See V.C. 23610(a)] to establish a fact in the criminal case “only if the trier of fact is convinced beyond a reasonable doubt from a consideration of all the evidence in the case that the presumed fact exists.” Jefferson, Cal. Evid. Benchbook, Vol.II, §46.51. As stated in Jefferson, Id.,:

“…the court should instruct the jury that it may find that the presumed fact exists only if: • The jury is convinced beyond a reasonable doubt that certain specified facts (the basic facts giving rise to the presumption) exist; and • The jury is convinced, beyond a reasonable doubt, from a consideration of all the evidence in the case, that the specified fact (the presumed fact) exists.

People v. Roder (1983) 33 C3d 491. 189 CR 501. See In re Winship (1970) 397 US 358, 25 L Ed 2d 368, 90 S. Ct 1068; Jackson v. Virginia (1979) 443 US 307, 61 L Ed 2d 560, 99 S Ct 2781; Ulster County Court v. Allen (1979) 442 US 140, 60 L Ed 2d 777, 99 S Ct 2213; Leary v. U.S. (1969) 395 US 6, 36, 23 L Ed 2d 57, 89 S. Ct 1532.”

The preliminary facts (“correct scientific procedures”) operate to establish presumptively facts essential to the defendant’s guilt, and thus the preliminary facts must be proven beyond a reasonable doubt. Evid. C. 607. See also P.C. §1096: Presumption of Innocence, right to an acquittal, and burden of proof beyond a Reasonable Doubt in a criminal case.

Ev. C. §501 states that any statute (with exception for §522) that assigns the burden of proof in a criminal action is subject to P.C. §1096. Therefore, section 403 of the Evidence Code must comport with P.C. §1096. The law revision comment to Evid. C. 501 states “that the statutory allocations do not (except for insanity) require the defendant to persuade the trier of fact of his innocence. Ev. C. §502 states that:

“[T]he court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact or that by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”


A mandatory presumption violates a defendant’s due process rights because it would require the defendant to produce some evidence to raise a reasonable doubt, and thus would be construed as lightening the prosecution’s burden of proving every element of the crime beyond a reasonable about. In re Winship (1970) 397 US 358; Ulster County Court v. Allen (1979) 442 US 140; Sandstrom v. Montana (1979) 442 US 510. Any mandatory presumption lightening the prosecution’s burden of proof in every element of the crime beyond a reasonable doubt is invalid under those cases.

Evid. C. §607 dealing with a presumption that involves an essential element of the crime charged requires the prosecution to prove the basic facts beyond a reasonable doubt and the defendant only need introduce evidence to raise a reasonable doubt about the existence of the presumed fact. See People v. Roder (1983) 33 C.3d 491. See also Jefferson, supra, §46.55 As Justice Jefferson stated:

“… the inference from the basic facts to the presumed fact must follow beyond a reasonable doubt. This necessarily casts the burden of proof of such fact beyond a reasonable doubt on the prosecution. To place the burden on the defendant to raise a reasonable doubt would thus violate the Ulster Country Court mandate. As a result, no instruction may be given to a jury that places on a criminal defendant the burden of proof of negating the existence of a presumed fact by raising a reasonable doubt. To so instruct a jury would remove the duty of the prosecution to prove beyond reasonable doubt every fact essential to the offense or the defendant’s guilt.”


As requested by the defense, and as required by Evid. C. 403(c) and case law, the court must give special instruction #1 which explains the law and informs the jury that the People must prove the foundational facts or the jury must disregard the chemical test result. The chemical test result is critical evidence and involves presumptions. To not instruct as requested in special #1 would violate Evid. C. §403(c), Due Process of law, and the Right to a Fair Trial.

1 Adams is cited by the People [without thorough analysis] that “failure to comply with Title 17 goes to the weight, not admissibility.” True, if a minor defect of Title 17 that does not go to the accuracy of the results. Not true if the failure to follow correct scientific procedures means the results are not proved accurate. If so, the test results are not accurate, they are not relevant.

2 As demonstrated below in IV, in a criminal case the burden of proof is beyond a reasonable doubt [as opposed to a preponderance of the evidence].