For those arrested using a breath test in Monterey or Santa Cruz, we can finally tell the jury the truth about the “real” blood alcohol level in most cases.
This is just a quick post. I’ve been so annoyed over the years that the jury was not allowed to be told the truth about what a persons real blood alcohol content might be. You see, in California, there has been a rule (not really a rule, like a half a law), but it’s how the judges have been ruling that the jury wasn’t allowed to be told that the truth about blood/breath ratios. Basically a persons breath may not be an accurate reading of their blood alcohol level and in fact their blood alcohol level may be lower, even significantly lower, but prior case law stated we, as defense attorneys, weren’t allowed to tell the jury this! Now we can and it’s why I’m excited – the truth, in my opinion, in a courtroom, is always good.
Here are the quick details. in the case of People vs. NcNeal, the California Supreme Court make it easier for those accused of DUI to tell the truth to the jury about what their real blood alcohol concentration might have been.
Before this ruling, DUI defendants-yes, especially the likely innocent ones, were precluded at trial from introducing evidence of individual variation in the conversion of breath test results to a blood alcohol reading (we call it the partition ratio). The Court’s decision in McNeal reverses this policy, allowing such evidence in “generic DUI charges”, also know as the “A” charge (California Vehicle Code section 23152(a)), but not in “per se DUI charges” also known as the “B” charge (California Vehicle Code Section 23152(b)).
Now, don’t get too excited, you have to have an attorney that knows how to use this knew law (yes, I do). I actually have been trained by an attorney in advance of this happening that has actually used this in a jury trial before.
