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People v. Campos11/9/1982
California Appellate Department, Superior Court
Crim. A. No. 19108
188 Cal.Rptr. 366, 1982.CA.40168
November 9, 1982
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CRUZ TAVERAS CAMPOS, DEFENDANT AND APPELLANT
Municipal Court for the East Los Angeles Judicial District of Los Angeles County, No. M-214323, W. J. Harpham, Judge.
Harold Kippen for Defendant and Appellant.
John K. Van de Kamp, District Attorney, Donald J. Kaplan and Arnold T. Guminski, Deputy District Attorneys, for Plaintiff and Respondent.
Opinion by Foster, Acting P. J., with Jones and Rothman, JJ., concurring.
Foster
Cruz Taveras Campos was arrested on a charge of driving under the influence of alcohol and submitted to a blood test to determine the alcohol content of his blood. The test reading indicated an alcohol content of .10 percent, but the test employed contained an inherent inaccuracy of plus or minus .005 percent, thus making it impossible to determine the alcohol content more precisely than that it was at some figure between .095 percent and .105 percent. On his appeal from the judgment of conviction, Campos contends that it was prejudicial error on the basis of this evidence to instruct the jury that he was presumed to have been under the influence of alcohol. We agree and reverse the judgment.
Former section 23126 of the Vehicle Code provided in significant part:
"(a) Upon the trial of any criminal action . . . arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of his blood, breath or urine shall give rise to the following presumptions affecting the burden of proof:
". . . .
"(3) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense."
After Campos was arrested, he submitted to a test in which blood was withdrawn and analyzed by a "wet" chemical procedure known as a "Smith-Widmark." This test, according to a criminalist called by the People, has a margin of error of .005 percent, so that the actual alcohol content of defendant's blood upon a test reading of 0.10 percent could have been as low as 0.095 percent. Over the objection of counsel for defendant the trial judge instructed the jury in the terms of CALJIC No. 16.834.
The presumption of a person with a blood alcohol content of .10 percent or greater being under the influence of intoxicants, created by Vehicle Code section 23126, is one affecting the burden of proof and requires the defendant to raise a reasonable doubt as to the existence of the presumed fact. (People v. Kitt (1978) 83 Cal. App. 3d 834, 842-843 [148 Cal. Rptr. 447].) To be proper in a criminal prosecution, the underlying fact giving rise to the presumption must be proved beyond a reasonable doubt (Evid. Code, § 607), and due process
requires that there be a rational connection between the proven fact and that presumed. (People v. Lachman (1972) 23 Cal. App. 3d 1094, 1097 [100 Cal. Rptr. 710]
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