Introduction of the 3rd digit of Chemical Tests Results in DUI Prosecution in Los Angeles (and elsewhere)
Often the chemical test blood alcohol level results in the police reports are reported to the third digit (e.g. instead of reporting the results to be 0.08%, it is reported as 0.089%). This can be significant because of our tendency to round off the results to the next closest digit. In other words, when the third digit is more than .05, the jurors, upon hearing it, will have a more difficult time accepting a non-guilty argument than they would, had the results been less than .05. It, therefore, does not benefit the defendants to have the results to be read to the third digit in a Driving Under the Influence trial in Los Angeles.
There are two conflicting authorities discussing the introduction of breath alcohol results. A statutory authority in the California Code Of Regulations (CCR), Title 17, section 1220.4(b) says, “analytical results shall be reported to the second decimal place, deleting the digit in the third decimal place when it is present.” In compliance with Title 17, then, the third digit of the result should not be used. If you are headed towards a DUI trial in Los Angeles, your Los Angeles DUI attorney should draft a motion in limine on Title 17, requesting the court to not allow the prosecutor or its witnesses to mention the third digit. However, a Los Angeles DUI prosecutor may respond to such motion with the case law of People v. Wood (207 Cal.App.3d Supp 11(1989)), an appeals decision from Ventura County permitting the introduction of 3rd digit based on the “Right to Truth-in-Evidence” provision of Proposition 8 which “requires admission of all relevant evidence”. Whether or not the 3rd digit will be introduced in evidence will depend on the judge’s interpretation of the case law. Even if the court will permit the introduction of the 3rd digit, your attorney, if knowledgeable, will draft a special jury instruction explaining to the jury that 3rd digit reporting is not compliant with California Law.
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