Schrieber

Defendant herein was convicted by a jury in the Redding Justice Court of driving while under the influence of intoxicating liquor (Veh. Code, § 23102, subd. (a)). He appealed to the superior court which reversed the conviction. In its memorandum opinion, the court expressed the opinion that section 23126 of the Vehicle Code is unconstitutional and the instruction given the jury thereon was prejudicial. The case was thereafter certified to this court.

The facts of the case are classically typical of the customary drunk driving arrest, the alleged erratic driving first calling the attention of the arresting officers to the defendant, the failure to pass roadside sobriety tests, an alcoholic breath, slurred speech, etc. The arrest occurred at approximately 2:05 a.m. Defendant consented to a blood test which was administered by a licensed technician at 2:45 a.m. Laboratory analysis showed a blood alcohol content of .15 at that time.

A forensic chemist testified as to the general effects of alcohol upon one’s driving abilities. H¿ was unable to state what the blood alcohol level of defendant was at the time of the arrest without knowing the drinking habits of the defendant.…