Instructions that permitted the jury to draw permissive inferences about defendant’s blood alcohol level at the time of a collision were proper even though other evidence contradicted the evidence supporting the instructions. Yushchuk, who had a history of DUI offenses, caused a traffic accident and killed a man. A vodka bottle missing ten ounces was found inside his car and Yushchuk claimed he drank the vodka while trapped after the accident. Two hours after the collision, he had a 0.14 percent blood alcohol level. He presented evidence his blood alcohol level was rising based upon drinking after the accident. The jury was instructed on two permissible inferences: (1) if it was proved beyond a reasonable doubt that the defendant’s blood alcohol level was .08 percent or greater, the jury could conclude that the defendant was under the influence of alcohol at the time of the offense; and (2) if the sample was taken within three hours of the driving, the jury could conclude that the defendant’s blood alcohol level was .08 percent at the time of the offense. Yushchuk was convicted of second degree murder and DUI offenses. On appeal, Yushchuk argued there was no basis to give the permissible inference instructions because he introduced evidence contradicting the evidence supporting the instructions. Held: Affirmed. The statutes underlying the permissive inference instructions (Veh. Code, §§ 23152, subd. (b), 23153, subd. (b)) are phrased as rebuttable presumptions, but case law interprets these statutes to only permit instruction on permissible inferences to avoid constitutional doubts. A permissive inference “leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof.” (People v. Roder (1983) 33 Cal.3d 491, 498.) Permissive inference jury instructions may be given regardless of whether there is other evidence admitted at trial “rebutting” the inference. The court here agreed with the reasoning in People v. Beltran (2017) 157 Cal.App.4th 235, and concluded there was no instructional error in this case.

There was no instructional error where trial court declined to instruct the jury that the permissible inference instructions did not apply to the murder count. The permissible inference instructions regarding Yushchuk’s blood alcohol level were not given as to the murder count. However, Yushchuk argued that the trial court should have affirmatively told the jury that the permissive inference instructions did not apply to the murder count. The Court of Appeal disagreed. Because the jury was separately instructed on the elements of murder, there was no reasonable likelihood that the jury would have supplanted the inference instructions for the malice instructions.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C081739.PDF