The 3 hour presumption is a rule that requires a chemical test be performed within 3 hours of the time of driving. The rule originates in VC23152b and essentially gives the prosecution the benefit of proving the person had the same blood alcohol level at the time of driving. The rule is rebuttable, meaning if any evidence is presented to show the person did not have the same BAC then the ”presumption “ disappears.
In California It is axiomatic that the Department bears the burden of proving the facts necessary to support the suspension of a driver’s license. Daniels v. Department of Motor Vehicles, (1983) 33 Cal. 3d 532, 536, 189 Cal. Rptr. 512, 658 P. 2d 1313 (“The burden of proving facts necessary to support a suspension of a license rests with DMV. Until DMV has met its burden of producing
competent evidence necessary to establish a prima facie case, the licensee has no duty to rebut the allegations or otherwise respond.” [Italics in original]), and that one of the elements which must be proven by the Department is that the licensee’s BAC was .08 or higher at the time of driving. Yordamlis v. Department of Motor Vehicles, (1992) 11 Cal. App. 4th 655, 661 (FN 5), 14 Cal. Rptr. 2d 225 (“…suspension under section 13353.2 depends on proof of a BAC at the time of driving, not on proof that the driver was under the influence.” [Emphasis added.]).
The Santos Court enunciated that the absence of evidence of a start or end time, negates application of the three hour presumption, stating:
“The Department did not rebut respondent’s evidence that the test results failed to prove her blood alcohol level at the time of driving was 0.08 percent or higher and, in fact, that her blood alcohol level at the time of driving was less than 0.08 percent. Whether or not the trial court accepted this evidence to the point of believing respondent’s blood alcohol was in fact lower than 0.08 percent at the time of driving, it is obvious that the laboratory test results failed to provide a piece of information critical to a determination of the level of alcohol in respondent’s blood at the time of driving. While the absence of evidence of the time respondent’s blood sample was taken did not render the test result inadmissible, without such evidence the Department simply could not meet its burden of proof. The hearing officer was permitted to draw inferences and deductions from the facts before him or her (Evid. Code, §600, subd. (b)); given the complete absence of evidence as to when respondent’s blood sample was drawn, however, there was no basis for an inference that respondent’s blood alcohol level was 0.08 percent or more at the time of driving”[Emphasis added.]
Santos v. Department of Motor Vehicles, (1992) 5 Cal. App. 4th 537, 549-550, 7 Cal. Rptr. 2d 10;
see also Yordamlis at 661 (“…there is no evidence that Yordamlis gave the tested blood sample within three hours of driving. Therefore, the “3 hour presumption” does not apply.”
The “3 Hour Presumption “ is particularly useful in accident cases where no driving was observed. If the time of the collision is not determined, the blood or breath results may be excluded.
Indeed, California EVID. CODE §600 sets forth: “a presumption may not be applied unless the necessary facts justifying application of the presumption have been established. The prosecution bears the burden of proving the accused’s driving time in order to justify application of the three-hour presumption.
The law is clear—the Prosecution, whether it be the District Attorney in a criminal case or the Department of Motor Vehicles in a DMV Hearing, bears the burden of proving the Licensee’s BAC was .08 or more at the time of driving, and the evidence that is critical to the Department’s burden of proof—the time the Licensee actually drove his car—has not been established.
It is indisputable that the official duty presumption does not apply when determining if the test was administered to determine a licensee’s BAC was administered within three hours of driving. The law in this regard is unequivocal—presumptions are not evidence and may be utilized only when justified by facts proven by the evidence.
