McNeal

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 584 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 585 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 586 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 587 OPINION I. FACTUAL AND PROCEDURAL HISTORY Defendant Timmie Lance McNeal was charged with driving under the influence of alcohol (Veh. Code, § 23152 , subd. (a) (section 23152(a))) 1 and driving with a blood-alcohol level of 0.08 percent or greater (§ 23152, subd. (b) (section 23152(b))). 2 The jury convicted defendant of driving under *Page 588 the influence under section 23152(a); it was unable to reach a verdict on the section 23152(b) charge of driving with a blood-alcohol level of 0.08…