Partition ratio evidence can be admitted, contend San Diego DUI Attorneys.

California Supreme Court Justice Corrigan wrote:

"2100-to-1 (partition) ratio overstates the actual amount of alcohol in his blood. For someone with an extremely low ratio of 1100 to 1, for example, use of the 2100-to-1 partition ratio would overstate blood-alcohol content by almost 50 percent."

All San Diego California DUI breath test machines multiply the result they get by 2100. But the lowest Partition Ratio is 1300:1 according to the McNeal case.

Assuming at the time of the test, so long as the usual body tempurature is normal:

a .06 can be as low as a .037
a .07 - .043
a .08 - .049
a .09 - .055
a .10 - .061
a .11 - .068
a .12 - .074
a .13 - .080
a .14 - .086
a .15 - .092
a .16 - .099

Oddly, under the new McNeal case, a San Diego California DUI criminal defense attorney can use scientific facts that the BAC reading is faulty to defend your client against the BAC-based presumption of being under the influence but not against the charge that your client was BAC was .08% or more.

Yet for years, before McNeal, California DUI Trial Judges precluded numerous Drunk Driving criminal defense attorneys from introducing evidence that a person's partition ratio may be different than the number the statute relies on for purposes of converting breath to blood. How unfair was that?

The United States Supreme Court, for 50 years, has clearly articulated the
principle that in our justice system, a defendant has the fundamental
right to present a defense and to present witnesses. In In re Oliver,
Justice Black declared that a defendant’s “right to his day in court” is
“basic in our system of jurisprudence” and includes “as a minimum, a right
to examine the witnesses against him, to offer testimony, and to be
represented by counsel.” In re Oliver, 333 U.S. 257, 273 (1948) (emphasis
added). Since then, the Supreme Court has again and again noted the
“fundamental” or “essential” character of a defendant’s right both to
present a defense, Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986);
California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S.
95, 98 (1972); Washington v. Texas, 388 U.S. 14, 19 (1967), and to present
witnesses as a part of that defense. Taylor v. Illinois, 484 U.S. 400,
408 (1988); Rock v. Arkansas, 483 U.S. 44, 55 (1987); Chambers v.
Mississippi, 410 U.S. 284, 294, 302 (1973); Webb, 409 U.S. at 98;
Washington, 388 at 19. The Court has repeatedly stated that a defendant’s
right to a defense and right to present witnesses and evidence emanates
from the Sixth Amendment and the Due Process Clause of the Fourteenth
Amendment. Crane, 476 U.S. at 294; Strickland v. Washington, 466 U.S.
668, 684-85 (1984); Washington, 388 U.S. at 17-18.

The Sixth Amendment source of these rights is the Compulsory Process
Clause, which embraces “the right to have the witness’ testimony heard by
the trier of fact.” Taylor, 484 U.S. at 409. Washington formally
incorporated the Compulsory Process Clause into the Due Process Clause of
the Fourteenth Amendment. 388 U.S. at 17-19. That case stated:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant’s version of the facts as well
as the prosecution’s to the jury so it may decide where the truth lies.
Just as an accused has the right to confront the prosecution’s witnesses
for the purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense. This right is a
fundamental element of due process of law. Id. at 19.

The defense in this case is seeking to bring forward evidence related to
the section 23152(a) charge levied against him. Specifically, the defense
seeks to introduce evidence concerning the variability of partition
ratios. The State will likely argue that evidence on partition ratio
variability is inadmissible under People v. Bransford, 8 Cal. 4th 885
(1994).

In Bransford, the court held that a defendant is not entitled to raise
partition ratios to defend against section 23152(b), wherein he or she is
charged with having .08 percent or greater blood alcohol concentration.
Bransford reasoned that, as amended, the statute defined the offense in
terms of specific grams of alcohol per liter of breath, thereby rendering
partition ratios comparing volume of blood to volume of breath irrelevant
and therefore inadmissible. Id., at 893. Yet Bransford was silent on the
relevance of partition ratio evidence to charges brought under section
23152(a).

People v. Acevedo, 113 Cal.Rptr.2d 437 (2001), interpreted Bransford to be
self-limiting. Acevedo applied Bransford exclusively to section 23152(b),
and to breath-alcohol, rather than blood-alcohol or urine-alcohol, test
result challenges. Id. at 441-43. Accordingly, the Acevedo court found
that People v. Lepine, 263 Cal.Rptr. 543 (1989), rather than Bransford,
applies when urine-alcohol test results are at issue. Following the
Acevedo court’s reasoning, Lepine also controls when section 23152(a),
rather than section 23152(b) charges are at issue. Under Lepine, a jury
is allowed to consider that partition ratios may vary from time to time
and from individual to individual.

State v. Hanks, 772 A.2d 1087 (1998), the only court to squarely address
Bransford’s application to partition ratios outside of section 23152(b)
breath-alcohol test result challenges, also construes Bransford narrowly.
At issue in Hanks is a Vermont statute that, like section 23152,
distinguishes between so-called “generic” DUI violations that make it
unlawful to drive while under the influence of intoxicating liquor, and
“per se” DUI violations that make it unlawful to drive with a
blood-alcohol concentration above a specified level. The Hanks court
ruled that a defendant can introduce partition ratio evidence to defend
against a “generic” statutory DUI charge. According to Hanks, Bransford
only controls when “per se” statutory DUI charges are at issue. Hanks
stated:

Because defendant is charged with driving while under the influence rather
than driving with an alcohol concentration exceeding the statutory limit,
admitting scientifically accepted evidence concerning the variability of
partition ratios will not negate a statutory offense or even an element of
a statutory offense; rather, it will merely allow defendant to challenge
the permissive inference and the State’s charge that he was impaired.
Id. at 1092-93. We agree.

“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, 23 Cal.4th 1121, 1137 (2000). 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. The presumption of a person with a
blood-alcohol content of .08 or greater being under the influence of
intoxicating liquor is one affecting the burden of proof and requires the
defendant 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 section 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 section 23152(a) prosecutions.

If you are in need a San Diego California DUI attorney, consider a free online consultation today.