Form 9-8: Jury Instruction—Violation of Title 17
SUPERIOR COURT OF THE
COUNTY OF _________, STATE OF CALIFORNIA
The People of the
State of California,
Case No. ______
JURY INSTRUCTION NUMBER ______.
VIOLATION OF TITLE 17, CALIFORNIA CODE OF REGULATIONS
Evidence has been introduced in this case of the results obtained in an analysis for alcohol content of a sample of the defendant’s [blood][breath] [urine]. In determining the weight to be given to such evidence, you are hereby instructed that you may consider whether or not the test was performed in accordance with the following applicable regulations adopted by the California Department of Health Services:
Insert here the particular provisions of Title 17, Cal. C. of Regs., which were violated. Most of the time you’ll be referring to Title 17, Cal. C. of Regs., §§1219.1, 1219.2 and 1219.3, which cover the proper procedures for collection and retention of blood, urine and breath samples. But look over the rest of Title 17 for other possible violations. One common violation is the failure to keep proper records at the laboratory, as required by Title 17, Cal. C. of Regs., §§1222 et seq.
[1. A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.
[2. (a) ‑Each laboratory which is licensed to perform forensic alcohol analysis shall keep the following records for a period of at least three years:
(1) An up-to-date record of persons in its employ who are qualified as forensic alcohol supervisors and forensic alcohol analysts; the record shall include the qualifications of each such person, including education, experience, training and performance in proficiency tests and examinations;
(2) A list of persons in its employ who are forensic alcohol analyst trainees, the date on which each such person began his training period and the number and results of analyses performed during the training period.]
The failure, if any, to follow these regulations may be considered by you in determining the accuracy of alcohol analysis made in this case.
Authority: People v. Adams (1976) 59 CA3d 559, 567, 131 CR 190; In re Conservatorship of Gregory (2000) 80 CA4th 514, 95 CR2d 336—Appropriate to instruct the jury on an administrative regulation; CALJIC’s 12.
61 and 12.61.1[; Title 17, Cal. C. of Regs., §1219.3 and Title 17, Cal. C. of Regs., §1222.1(a)].
Given: ____________ _________ _______
Given as Modified: ____________ _______
Denied: ____________ _________ ______