required], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470,
481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d
Supp. 9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable];
People v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587
[249 Cal.Rptr. 906] [unanimity instruction not required, failure to give harmless
error if was required].) If the court concludes that a unanimity instruction is
appropriate, give the unanimity alternative A. If the court concludes that unanimity
is not required, give the unanimity alternative B.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that the defendant’s blood alcohol level was 0.08 percent”
explains a rebuttable presumption created by statute. (See Veh. Code, § 23610;
Evid. Code, §§ 600–607.) The California Supreme Court has held that a jury
instruction phrased as a rebuttable presumption in a criminal case creates an
unconstitutional mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491,
497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with Roder, the
instructions have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that the defendant’s blood alcohol level
was 0.08 percent” if there is no evidence that the defendant’s blood alcohol level
was at or above 0.08 percent at the time of the test. In addition, if the test falls
within the range in which no presumption applies, 0.05 percent to just below 0.08
percent, do not give this bracketed sentence. (People v. Wood (1989) 207
Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider
whether there is sufficient evidence to establish that the test result exceeds the
margin of error before giving this instruction for test results of 0.08 percent.
(Compare People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4–5 [188 Cal.Rptr.
366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.
The statute also creates a rebuttable presumption that the defendant was not under
the inﬂuence if his or her blood alcohol level was less than 0.05 percent. (People v.
Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the
facts of the case, the defendant may be entitled to a pinpoint instruction on this
presumption. It is not error to refuse an instruction on this presumption if the
prosecution’s theory is that the defendant was under the combined inﬂuence of
drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
CALCRIM No. 2100 VEHICLE OFFENSES