People v. McNeal, No. S157565

Court of Appeals judgment is affirmed where evidence about partition ratio variability is relevant in generic DUI cases to rebut the presumption of intoxication in Vehicle Code sec. 23610 and support an inference that the defendant was not under the influence, but may not be used to negate the basic fact triggering the Vehicle Code sec. 23610 presumption and thereby defeat operation of the presumption itself. Conviction for driving under the influence is affirmed where: 1) although defendant was prevented from introducing evidence about partition ratio variability, the error was harmless, as there was significant evidence of his intoxication; and 2) the jury's verdict indicated that the admission of partition ratio evidence was not reasonably likely to have produced a more favorable result. 

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Appellate Information
Appeal from San Bernardino County Super. Ct. No. TRE038083.
Filed July 9, 2009

Judges
Before CORRIGAN, J. WE CONCUR: GEORGE, C. J., KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., MORENO, J.
Opinion by CORRIGAN, J.

Counsel
For Appellant: Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney.

For Defendannt: Jamie L. Popper, under appointment by the Supreme Court, and Linn Davis, under appointment by the Court of Appeal.