What is a Rebuttable Presumption and How Does it Come into Play with a DUI? California Vehicle Code Section 23152
May 21, 2015
rebuttable presumption
Were you pulled over and arrested for DUI?

In California, it is a crime to operate a vehicle with .08 percent or more (by weight) of alcohol in his or her blood [California Vehicle Code Section 23152(b)]. California Vehicle Code Section 23152(b) further states that it is a rebuttable presumption that the person had 0.08 percent blood alcohol level, if a chemical test was performed within three hours after driving, which resulted in a 0.08 blood alcohol level or more.

What is a rebuttable presumption?

This language begs the question: “What is a rebuttable presumption?” A rebuttable presumption means that the prosecution can assume that you had a .08 percent blood alcohol level at the time you were driving if, at any point within three hours after you were pulled over, you had a .08 percent or higher alcohol content. The assumption can be challenged by evidence offered by the defendant.

Practically speaking, this means that if you are pulled over by law enforcement and you refuse a breathalyzer test, law enforcement can take you into custody, and then at any point within three hours, perform a blood test.

This process can be very detrimental to defendants because blood alcohol levels peak over the passage of time. Thus, if you had your last drink 30 minutes before getting pulled over by law enforcement, it is likely that your blood alcohol level will not have peaked (be at its highest point) at the time you are pulled over. So, your blood alcohol content when you were pulled over could have been below .08 percent, but within 30 minutes (and definitely within 3 hours) it could be at or above .08 percent, leaving the prosecution with the rebuttable presumption that you had a .08 percent or higher blood alcohol content when you were driving.

Contact the DUI Attorneys at Wallin & Klarich Today

While DUI cases seem relatively easy, they are in fact quite complex. For this reason, it is important to hire an experienced San Diego drunk driving defense attorney from Wallin & Klarich to defend your rights. The DUI defense attorneys at Wallin & Klarich have over 30 years of experience handling DUI cases and have the skills and expertise to provide you with the best possible defense. Our attorneys are well versed in the science and mechanics of DUIs and have a good track record with our clients. If you or a loved one has been charged with a DUI, call an attorney at Wallin & Klarich immediately. Our attorneys can be reached by phone at (877) 4-NO-JAIL or (877) 466-5245. We will be there when you call.

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