Return to CALJIC Part 9-12 – Contents
F 12.60 n1 DUI: Joy Riding And Leaving The Scene On Foot Insufficient To Satisfy “Other Act” Element (VC 23153(a)).
An element of a violation of VC 23153(a) is that the defendant, while driving under the influence, committed an unlawful act or failed to perform some duty required by law. (People v. Capetillo (90) 220 CA3d 211, 216 [269 CR 250]; see also FORECITE F 12.60a for proposed instruction.) These acts include the failure to yield the right of way to a pedestrian, violating the basic speed law, knowingly operating a car with defective brakes, driving a vehicle when the windshield was so dirty as to cause poor visibility, and recklessly driving by zig-zagging from side to side. (Capetillo 220 CA3d 216-17.)
a. Joy Riding Is Insufficient.
Driving a vehicle without the owner’s consent in violation of PC 499b or VC 10851(a) is not a proper predicate for felony drunk driving liability. As the court in Capetillo observed: “Let us assume, for example, Capetillo, under the influence of drugs, was driving another’s car without permission and that while legally stopped at an intersection he was plowed into by another driver going 90 miles per hour. If joy riding alone satisfied the unlawful act requirement, we would then be compelled to find the defendant guilty of felony drunk driving even though he committed no violation when driving and had been struck because of the other driver’s negligence.” (Capetillo 220 CA3d at 217-18.)
One who commits the offense of joy riding is not necessarily “careless in operating or maintaining” his or her vehicle. Therefore, the act of joy riding does not implicate the policy concerns of the felony drunk driving law.
NOTE: Effective January 1, 1997, PC 499b was amended, deleting reference to “any automobile, motorcycle, or other vehicle.” The new statute only pertains to bicycles, motorboats or vessels. (See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].)
b. Leaving The Scene On Foot Is Insufficient.
Under VC 20001 and VC 20003, leaving the scene of an accident without notification or rendering reasonable assistance to any injured persons, is a violation of the law. However, if the defendant leaves the scene of the accident on foot, he has not committed the offense “when driving under the influence” and therefore this violation is insufficient to satisfy the “other act” requirement of felony drunk driving. (Capetillo 220 CA3d at 219.)
But see People v. Hernandez (90) 219 CA3d 1177, 1184-85 [269 CR 21], holding that stopping a vehicle on a freeway and failing to take steps to warn other drivers by using hazard lights satisfies the “other act” requirement for felony drunk driving.
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n2 DUI Instruction Package (VC 23153(a)).
[A package of miscellaneous drunk driving instructions is available to current subscribers. Ask for Instruction Package # I-853.]
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n3 Weaving As LRO Of DUI (VC 23152(a)).
Weaving in violation of VC 12658(a) may be a lesser related offense of driving under the influence in violation of VC 23152(a).
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n4 DUI: Less Than 0.05% Blood Alcohol Raises A Rebuttable Presumption (VC 23153(a)).
VC 23610(a)(1) (former VC 23155(a)(1)) states that if the defendant’s blood, breath or urine test shows a “0.05% by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” In People v. Gallardo (94) 22 CA4th 489, 496 [27 CR2d 502], the defendant argued that the trial court erred in denying his request that the jury be instructed the presumption in VC 23610(a)(1) (former VC 23155(a)(1)) is a mandatory presumption. The Court of Appeal rejected this argument holding that presumption is a rebuttable one relying on EC 605, EC 620 and EC 660. (But see FORECITE F 12.61 a–f.)
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n5 DUI With Bodily Injury: Sua Sponte Definition Of Causation Required (VC 2800.2 & VC 23153(a)).
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the Court of Appeal held that it was prejudicial error for the trial court to fail to sua sponte instruct upon the definition of proximate cause within the meaning of VC 2800.2 and VC 23153(a).
NOTE: Even though CALJIC has eliminated the term “proximate” from its causation instruction (see CJ 3.40 (1992 revision)), the requirement of “proximate causation” is required by the language of the above statutes.
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n6 DUI: Repeated Conviction Of VC 23153.
VC 23566(a) (former VC 23190(a)) makes violation of VC 23153 a felony if it occurred within 7 years of 2 or more separate violations of VC 23103, VC 23152 or VC 23153.
Effective 1/1/94, VC 23566 (former VC 23190) was amended to add subds. (b) and (c) to provide for an additional 3 year state prison enhancement when the violation results in great bodily injury to a person other than the driver and where the conviction occurred within 7 years of 4 or more separate prior convictions. This enhancement must be plead and proven.
Note that in any case where a violation of subd. (b) is alleged, a violation of subd. (a) will be an included offense if great bodily injury is not proven.
[Research Note: See FORECITE BIBLIO 12.60]
F 12.60 n7 DUI: Admissibility Of “HGN” Test (VC 23153(a)).
In People v. Leahy (94) 8 C4th 587, 612 [34 CR2d 663], the Supreme Court held that the horizontal gaze nystagmus field sobriety test is governed by Kelly-Frye criteria for admission of evidence of new scientific techniques.
RESEARCH NOTE: See “DWI: Challenging And Excluding HGN Tests,” by Troy McKinner, NACDL Champion, April 2002 (www.nacdl.org).
See also FORECITE BIBLIO 12.60.
F 12.60 n8 DUI: .05% Presumption Instruction Not Required When Prosecution Relies Upon Combined Influence Of Alcohol And Drugs (VC 23153(a)).
See People v. Andersen (94) 26 CA4th 1241, 1250 [32 CR2d 442].
F 12.60 n9 Duress As Defense To Drunk Driving.
(See FORECITE F 4.40 n8.)
F 12.60 n10 Administrative Suspension Of License Does Not Bar DUI Charges.
People v. Superior Court (Moore) (96) 50 CA4th 1202 [58 CR2d 205] held that double jeopardy principles do not bar prosecution for drunk driving per VC 23152 even though the DMV administratively suspended the defendant’s license prior to filing of the criminal charges.
F 12.60 n11 DUI: Credibility Of Injured Witness (CC 3333.4).
CC 3333.4 was added by Proposition 213 in the November election in 1996. The new statute precludes or limits recovery of damages for an injured person who was driving in violation of VC 23152 or VC 23153 and is so convicted. Hence, there is a built in financial interest on the part of the driver who caused the injury to have the injured person convicted of drunk driving. To the extent that the drunk driving charges are based upon the testimony of the other driver, the jury should be instructed on this financial interest. (See FORECITE F 2.20e.)
Additionally, CC 3333.4 allows an uninsured driver, who normally is precluded from suing for damages, to recover damages if the other person is convicted of drunk driving. This provides an obvious financial motive for the injured person to help obtain a drunk driving conviction against the defendant. Accordingly, the jury should be instructed upon this financial interest when appropriate. (See, F 2.20e.) Copyright Note: The above instruction was taken, with permission, from California Drunk Driving Law (Fast Eddie Publishing (707) 459-3999).
F 12.60 n12 Consciousness Of Guilt From Defendant’s Refusal To Submit To Blood Or Sobriety Tests.
(See FORECITE F 2.06 n4 and F 16.835 n2.)
F 12.60 n13 Felony Drunk Driving: Sua Sponte Duty To Define “Speeding” When It Is An Element Of The Charge.
To be criminally liable for drunk driving under VC 23153(a) a defendant must not only drive the vehicle while under the influence of alcohol but commit some other violation of law which caused bodily injury to a person other than the defendant. (See FORECITE F 12.60a.) In People v. Ellis (99) 69 CA4th 1334 [82 CR2d 409] the independent violation of the law charged as a predicate to the VC 23153(a) violation was “speeding.” The Court of Appeal held that it was error not to define the term speeding because it includes both a violation of the maximum posted speed limit and the basic speed law. (See VC 22350.) “It is commonly understood that speeding, in the context of driving a motor vehicle, means driving a motor vehicle faster than is allowed by law. [Footnote omitted.] We believe the most common understanding people have of speeding is driving faster than the posted speed limit. Defendant here was not convicted on a theory that he was driving faster than the maximum posted speed limit, since there was no evidence of the posted speed limit nor was there any meaningful evidence of defendant’s exact speed at the time of the accident. Defendant’s conviction was based on a violation of the basic speed law. (¶) “The question then arises whether common knowledge of the basic speed law is sufficient to simply reference the violation as “speeding” rather than expanding the reference by way of definition. …Speeding under [VC 22350] is driving ‘at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of the highway;’ speeding also occurs ‘at a speed which endangers the safety of persons or property.’ …Absent being instructed in these standards for deliberation, jurors may view speeding as occurring any time one vehicle collides with the rear end of another regardless of examining questions of circumstance, reasonableness and danger; or they may believe that speeding occurs only when the posted speed limit is exceeded.”
Furthermore, the court noted that it is not necessary to be a licensed driver to serve on a jury and, hence, it cannot be expected that all jurors will know the “rules of the road.” (Ellis, 69 CA4th at 1339.)
Accordingly, the trial court “had a sua sponte duty to give an amplifying or clarifying instruction defining the term.” (Ellis, 69 CA4th at 1339.)
F 12.60 n14 Drunk Driving: Wobbler Reduced To Misdemeanor Is Not Prior Felony Conviction (Former VC 23175.5 – Now VC 23550.5).
(See People v. Camarillo (2000) 84 CA4th 1386 [101 CR2d 618], [a prior drunk driving conviction converted to a misdemeanor under PC 17(b)(3) may not be used as a prior conviction for purposes of former VC 23175.5].)
F 12.60 n15 Drunk Driving: Applicability Of Accomplice Liability – Co-Perpetrator (PC 191.5/PC 192(c)(3)).
See People v. Verlinde (2002) 100 CA4th 1146 [123 CR2d 322] [co-perpetrator accomplice liability where two intoxicated persons operate the same vehicle].
F 12.60 n16 Drunk Driving: Aiding And Abetting Liability – Intoxication To Negate Knowledge And Intent.
Theoretically, a person who hands over control of a vehicle to an intoxicated person may be guilty of drunk driving as an aider and abettor. (People v. Verlinde (2002) 100 CA4th 1146, 1161 [123 CR2d 322].) However, if the person who handed over the vehicle was himself too drunk to drive then the knowledge and intent elements required for aiding and abetting may be missing. (Ibid; see also FORECITE F 4.21.2b.)
F 12.60 n17 Drunk Driving (DUI): Breathalyzer Gender Bias.
A small, but growing number of women are winning court cases after arguing the breathalyzer device (Intoxilyzer 5000) has a built-in gender bias, making it appear as if they’ve had more to drink than they really have. Georgia attorney Billy Spruell has argued, supported by studies by Chattanooga Biochemist Dr. James Woodford, that the Intoxilyzer 5000 was calibrated to measure men, who metabolize alcohol differently than women by keeping less of it on their breath.
For additional information on this defense theory see WXIA-TV Atlanta’s News 11 report, “Lawyer: Breathalyzer Has Gender Bias”:
http://www.11alive.com/news/news_article.aspxx?storyid=38899
“Drunk Driving Defense Tested”:
http://www.11alive.com/news/news_article.aspxx?storyid=38967
or go to Dr. Woodford’s website at:
http://www.mindspring.com/~woodford/.
F 12.60 n18 DUI: Breath Test Observation Requirement (VC 23152).
To ensure the presumptive reliability of the breath test results, the administrator of a breath test must follow California Code of Regulations, title 17, section 1219.3, which provides: “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 the collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.” However, in Taxara v. Gutierrez (2003) 114 CA4th 945, the court held that there is nothing in the language of the regulation that requires the administrator of the breath test to conduct the entire observation. “So long as the observation of the subject is `continuous’ for at least 15 minutes, the regulation is satisfied. We see no reason why two or more observers who–much like runners in a relay race–observe the subject in succession over a period of at least 15 minutes preceding the breath test cannot be deemed to have conducted the `continuous observation’ regulation 1219.3 requires.” (Taxara, 114 CA4th at 950.)
F 12.60 n19 Drunk Driving (DUI): Weaving Within Lane Does Not Violate “Lane Straddling” Statute (VC 21658(a)).
California’s “lane straddling” statute (VC 21658) states: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”
Neither VC 21658(a) nor California case law specifies what is meant by “drive as nearly as practical entirely within a single lane.” It therefore is unclear under California law whether a car’s wheels must cross over a line for there to be a violation of lane straddling. Courts in other states have held that touching the line is not enough to constitute lane straddling when interpreting statutes similar to California’s. (See, e.g., United States v. Gregory, 79 F3d 973, 978 (10th Cir. 1996) [holding that an isolated incident of a vehicle crossing into the emergency lane of a roadway does not violate state statute’s requirement that vehicles remain entirely in a single lane “as nearly as practical”]; United States v. Guevara-Martinez, 2000 U.S. Dist. LEXIS 7202, 2000 WL 33593291 at *2 (D. Neb. May 26, 2000) [interpreting a similar Nebraska statute and concluding that touching, but not crossing, the broken line between two southbound lanes twice in a half mile did not violate the statute’s “near as practicable” requirement], aff’d, 262 F3d 751 (8th Cir. 2001); Rowe v. State of Maryland, 363 Md. 424, 769 A2d 879, 889 (Md. 2001) [concluding that “momentary crossing of the edge line of the roadway and later touching of that line” was not reasonable suspicion to justify traffic stop]; State v. Caron, 534 A2d 978, 979 (Me. 1987) [holding that there was not reasonable suspicion to justify a stop because a vehicle’s “one time straddling of the center line of an undivided highway is a common occurrence”]; State v. Tarvin, 972 SW2d 910, 912 (Tex. Ct. App. 1998) [holding that police officer did not have reasonable suspicion to stop the defendant’s vehicle where the defendant’s car “touched the right-hand white line”].) These cases suggest that to violate a lane straddling statute, a driver must do more than simply touch, even for 10 seconds, a painted line on a highway. (See Rowe, 769 A.2d at 887-88 [citing cases in which courts have upheld traffic stops and noting that the conduct justifying the stop was “more egregious” than touching the line or briefly crossing over it].)
In United States v. Colin, 314 F3d 439 (9th Cir. 2002) the Ninth Circuit held that “[t]ouching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the statute’s requirement that a driver drive as ‘nearly as practical entirely within a single lane.’ [Citation.] (emphasis added).” The defendants did not violate VC 21658(a) by the vehicle’s touching, but not crossing, two lines for approximately 10 seconds just prior to making safe lane changes. The evidence was insufficient for the officer to harbor a reasonable suspicion that defendants were driving under the influence in violation of VC 23152 because the vehicle did not demonstrate pronounced weaving, and the officer observed the vehicle for only 35 to 45 seconds. (See also Crooks v. State, 710 So2d 1041, 1043 (Fla. Dist. Ct. App. 1998) [“Because the record does not establish how far into the right-hand emergency lane [defendant] drove on any of three occasions, there is no basis to state that he was outside the `practicable’ lane.” (emphasis added)].) “Even if we assume, as the district court did, that `if the wheels were on the line, then that part of the vehicle that extends beyond the wheels was over the line and the car was traveling in two lanes,’ we still conclude that there was not reasonable suspicion to stop [the defendants] for a violation of section 21658(a).” (United States v. Colin, 314 F.3d at 444.)
Weaving And Probable Cause To Stop. In People v. Perez (85) 175 CA3d Supp. 8, an officer with training and experience in handling cases involving driving under the influence observed a driver weave within his lane (two feet in each direction) for approximately three-quarters of a mile. The court considered as a matter of first impression in California whether an officer “may lawfully detain a driver [on the basis of driving under the influence] who has been observed to be weaving within his lane.” (Emphasis added). Adopting the reasoning of cases from other states in which courts have held that weaving within one’s lane for substantial distances creates reasonable suspicion of driving under the influence, the court held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (Id. at 778 (emphasis added); see also State v. Caron, 534 A.2d 978, 979 (Me. 1987) [holding that “single, brief straddling of the center line of the undivided highway, with no oncoming traffic in sight and no vehicles passing on the left…. did not give rise to an objectively reasonable suspicion” of intoxication or fatigue]; State v. Bello, 871 P.2d 584, 587 (Utah Ct. App. 1994) [finding a single incident of weaving in windy conditions insufficient to justify a stop based on suspicion of drunk driving]; United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993), overruled on other grounds by United States v. Botero-Ospina, 71 F3d 783, 786-87 (10th Cir. 1995) [“If failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy”].)
F 12.60 n20 DUI: Causing Serious Bodily Injury Is Not A “Crime of Violence.”
See Leocal v. Ashcroft (2004) 543 US 1 [160 LEd2d 271; 125 SCt 377] [DUI offenses that either lack a mens rea component or require only a showing of negligence in the operation of a vehicle are not crimes of violence under 18 USC 16].
F 12.60 n21 DUI: Suspension Of License (VC 13353) For Refusing Test (VC 23612).
See FORECITE F 2100 Note 13.
F 12.60a
Felony Drunk Driving:
Requirement Of Independent Violation Of The Law
(VC 23153(a))
*Amend ¶ 8 of CJ 12.60 to provide as follows:
2. When so driving such person did some act, other than driving under the influence, which violated the law or failed to perform some duty required by the law, and …
With respect to element 2, you may not return a guilty verdict unless you find beyond a reasonable doubt that the defendant violated the law or failed to perform a duty in one of the following respects: 1. __________; or 2. __________; etc.
In order to return a guilty verdict, you must unanimously agree on the particular law or duty which was violated.
Points and Authorities
VC 23153(a) is clear on its face that not only must the defendant drive while under the influence, but he must also “do any act forbidden by law or neglect any duty imposed by law ….” (People v. Ferrara (88) 202 CA3d 201, 205 [248 CR 311]; see also People v. Capetillo (90) 220 CA3d 211, 216 [269 CR 250].) Thus, an additional unlawful act or omission is a “second element” of the offense and “is not satisfied by evidence that the defendant was under the influence of alcohol while operating the vehicle … The evidence must establish an unlawful act or omission in addition to driving under the influence of alcohol.” [Citations omitted.] (Ferrara 202 CA3d at 206; emphasis in original.)
An essential element of VC 23153(a) is the violation of a law or duty. (People v. Gary (87) 189 CA3d 1212, 1216-17 [235 CR 30].) Thus, the court is required to instruct the jury on the specific laws or duties which were allegedly violated by the defendant. (Ibid.)
In its present form, CJ 12.60 does not clearly express this requirement. Although CJ 12.60 does require the jury to find “some act” which violated the law or “some duty” which was not performed, the instruction does not make it clear that the act or omission is separate from and must be found in addition to driving under the influence. (See also Ackley, Criminal Defense Instructions, Instruction D-20.2, p. 92.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Violation of VC 27315(d)(1) [Mandatory Seatbelt Law] is sufficient to satisfy the independent violation element of VC 23153(a). (People v. Weems (97) 54 CA4th 854, 863 [62 CR2d 903].) This amounts to an extension of the prior rule which limited the independent acts to driving which contributed to the accident or mechanical violations which impaired the ability to drive the car in a manner so as to avoid an accident. (Ibid)
F 12.60b
Felony Drunk Driving: Definition Of Driving
(VC 23153(a))
*To be added after 3rd ¶ of CJ 12.60:
Driving is the act of physically controlling a moving vehicle whether or not the engine is running. If there is no movement of the vehicle then the defendant was not driving, even if [he] [she] started the engine.
Points and Authorities
A driver is defined as set forth above by VC 305. In People v. Hernandez (90) 219 CA3d 1177, 1183-84 [269 CR 21], the court discussed the question of what constitutes driving in the specific context of whether or not the engine needs to be running. In Hernandez, the defendant’s engine had stalled and he was controlling the vehicle as it coasted. The Hernandez court concluded that he was controlling the vehicle and, hence, driving it within the meaning of VC 23153(a). (Hernandez at 1183-84.) On the other hand, even if the engine has been started there is no driving unless there is movement of the vehicle. (Mercer v. DMV (91) 53 C3d 753, 763-69 [280 CR 745] [disapproving dictum in Hernandez]; see also Music v. DMV (90) 221 CA3d 841, 848-51 [270 CR 692].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES: Steering the car from the passenger seat constitutes driving. (See In re Queen T. (93) 14 CA4th 1143 [17 CR2d 922].)
RESEARCH NOTES: See Annotation, What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 ALR3d 7 and Later Case Service.
F 12.60c
Felony Driving Under The Influence:
Failure To Advise That Breath Sample Not Retained
(VC 23153(a))
*Add to CJ 12.60:
The arresting officer is required to advise a person who chooses to submit to a breath test before or after the test, that a breath sample will not be retained and will be unavailable for analysis after the test. The officer must further advise that because no breath sample is retained, there will be an opportunity to provide a blood or urine sample which may be subsequently analyzed.
The officer’s failure to comply with these requirements may be considered by you as a factor bearing on both the credibility of the officer and the accuracy of the breath test.
Points and Authorities
In People v. Alvarado (86) 181 CA3d Supp 1, 6 [226 CR 329], the court held that when evidence is presented that the notice requirements of VC 23614 (former VC 23157.5) were violated by the arresting officer, “the defendant would be entitled to a jury instruction, advising the jury of the provisions of [VC 23614 (former VC 23157.5)], and permitting the jury to consider the officer’s failure to advise the defendant of his rights as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer or at his direction.” (Alvarado at 5-6; Rucker & Overland, California Criminal Forms & Instructions (83) § 44:38A.)
See CJ 17.28.2 for instruction on willful refusal to take or complete a chemical test.
F 12.60d
Multiple Injury Enhancement
(VC 23558 former VC 23182)
*Add to CJ 12.60 [the following instruction should be given when the information charges a multiple injury enhancement under VC 23558 (former VC 23182)]:
It is further alleged that defendant proximately caused bodily injury or death to more than one victim while driving in violation of __________ [insert code section] as charged in Count _____ of the information.
If you find defendant guilty of the charge alleged in Count _____ of the information, you must determine whether or not this additional allegation has been proven beyond a reasonable doubt.
To find this additional allegation you must find: (1) that two or more persons were killed or injured and (2) that the death or injuries were caused by defendant.
The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
You will include a special finding on this allegation, using a form that will be supplied to you.
*SPECIAL VERDICT FORM*
We, the jury, find as follows:
While committing __________ in violation of __________ as charged in Count _____ of the information, defendant caused bodily injury or death to the following individuals: [Place an “x” beside the answer to which you unanimously agree.]
__________ [insert name of victim alleged to be injured or killed] True Not True
__________ [insert name of victim alleged to be injured or killed] True Not True
__________ [insert name of victim alleged to be injured or killed] True Not True
__________ [insert name of victim alleged to be injured or killed] True Not True
Points and Authorities
A defendant in a criminal case is entitled to have a jury determine unanimously and beyond a reasonable doubt that an allegation calling for a special finding is true. Its determination must be preceded by proper instructions regarding the meaning of the statute governing the allegation. (People v. Belmontes (88) 45 C3d 744, 792 [248 CR 126].)
VC 23558 (former VC 23182) provides that any person “who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation” of VC 23153 or PC 191.5, or PC 192(c)(3), shall receive an enhancement of one year in state prison for each additional injured victim up to a maximum of three years. To find this enhancement, the jury must unanimously agree that at least two victims were injured. In order to assure juror unanimity regarding this finding, the jury must unanimously agree which of the persons were injured. (People v. Gibson (91) 229 CA3d 284, 287 [280 CR 52].) Moreover, specification of which persons the jury unanimously determines to be injured also is necessary in order to accurately inform the court of the number of years available to enhance the penalty. (Ibid.)
The above proposed instruction and special finding are designed to require the jury to make the necessary unanimous finding. (CALJIC does not include a proposed instruction for this enhancement, although it does include a miscellaneous enhancement form instruction (CJ 17.24.1).)
The failure to adequately instruct on juror unanimity implicates the defendant’s state (Art. I, § 7(a) and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE F 17.01 n2, n3 and n4.)
NOTES
Definition of Cause. See CJ 3.40.
Applicability To Vehicular Manslaughter. FORECITE’S proposed enhancement instruction and special form should also be used when the enhancement is alleged in Vehicular Manslaughter cases. (See FORECITE F 8.93, et seq.)
F 12.60e
Applicable VC Violations Must Be Referenced
In Respect to Felony DUI Counts
(VC 23558 former VC 23182)
*When appropriate modify element “2″ of CJ 12.60 to provide as follows [added language is capitalized]:
2. WHEN SO DRIVING such person concurrently did some act which violated the law or failed to perform some duty required by law, NAMELY A VIOLATION OF __________ [insert specific violation relied upon by prosecution], and
Points and Authorities
In People v. Minor (94) 28 CA4th 431, 438-39 [33 CR2d 641], the court recommended the above modification to CJ 12.60. In Minor, the prosecution was based on violations of infractions and not on a negligence theory. Thus, the jury had to find that the defendant committed an infraction other than D.U.I. to convict for VC 23153(a)&(b). The trial court instructed on vehicular manslaughter and gave instructions defining the infractions. The court then instructed on VC 23153(a)&(b) but did not repeat the definitional instructions on the infractions. The appellate court held that it was error not to repeat the definitions underlying VC infractions. (Minor, 28 CA4th at 438, citing People v. Gary (87) 189 CA3d 1212, 1216-17 [235 CR 30].) Hence, where the prosecution relies on specific code violations for both manslaughter and felony DUI, with injury, the court must instruct the jury that it must find the code violations for both sections.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 12.60f
Credibility Of Injured Witness (CC 3333.4).
*Add to CJ 12.60 as follows:
You are hereby instructed that under the laws of the State of California, in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses if the person was driving in violation of section [23152] [23153] of the Vehicle Code and is convicted of that offense.
[In addition, if a person was the owner of a vehicle involved in an accident and the vehicle was not insured as required by the financial responsibility laws of this state, the person shall not recover non-economic losses, unless the person who caused the injury was driving in violation of section [23152] [23153] of the Vehicle Code and is convicted of that offense.]
Non-economic losses include compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.
The effect of this law is that any other person involved in the accident may have a financial interest in helping the prosecution to obtain a conviction of the defendant so charged.
You may consider this information, giving it whatever weight you choose, in judging the credibility of the testimony of any witness who may have such a financial interest in the outcome of this case.
Points and Authorities
CC 3333.4 (Stats. 1996, Prop. 213, § Civil Justice Reform). CC 3333.4 clearly creates a financial interest when an uninsured driver involved in an accident testifies as a witness. When an uninsured driver is involved in an accident with an accused drunk driver there is a strong motive to help the prosecution obtain a conviction. Not only will such injured person have to pay less if they are found at fault in the accident, but they may recover full damages themselves for their own injuries. Such motive is clearly relevant and the jury should be so instructed. For a more general instruction on financial interest of a witness see FORECITE F 2.20e [interest of witness in outcome of proceeding].
The constitutionality of CC 3333.4 has been ruled on by several trial courts with conflicting results. In Congress of California Seniors v. Quackenbush (4/4/97, San Francisco Sup. Ct. No. 983314) 97 DAR 4527 the court issued a preliminary injunction against implementing the initiative. [A copy of the above order is available to FORECITE subscribers. Ask for Opinion # O-233.]
NOTE: The constitutionality of CC 3333.4 has been ruled on in Yoshioka v. Superior Court (Todd) (97) 58 CA4th 972 [68 CR2d 553] [Prop. 213 constitutional in both its retroactive and prospective application].
The above instruction and points and authorities are courtesy of Ed Kuwatch, author of California Drunk Driving Law (Fast Eddie Publishing (707) 459-3999).
F 12.60g
Drunk Driving:
Duty To Instruct On Elements Of Violation
Which Is Predicate For Drunk Driving Charge
* Replace Element 2 of CJ 12.60 with the following:
2. That person concurrently committed the following violation of the law _________. This requires the prosecution to prove beyond a reasonable doubt that [enumerate elements of violation]:
a. ____________________________;
b. ____________________________;
c. ___________________________; etc.
Points and Authorities
In People v. Ellis (99) 69 CA4th 1334 [82 CR2d 409] the court imposed a sua sponte duty on the trial court to define “speeding” when it is the predicate violation of law for a VC 23153(a) charge (see FORECITE F 12.60a). This sua sponte duty should also include all elements of such predicate violations. The predicate offenses required for VC 23153(a) are no different conceptually from the predicate offenses in other contexts such as felony murder, burglary, criminal street gang violations, etc. in which the underlying predicate offenses must be defined. (See e.g., CJ 14.50 [burglary], CJ 8.21 [felony murder], CJ 6.50 [criminal street gangs].) Hence, instruction on the elements of the predicate offense(s) for a drunk driving conviction under VC 23153(a) should also be required.
NOTE: Ellis illustrates the importance of requiring the prosecution to specify the supporting act or violation of the law. If the supporting act is a negligent omission of a duty the facts underlying the negligence must be pled and proven. (See Kuwatch, California Drunk Driving Law, Fast Eddie Publishing Co., Chapter 1, § 2a.) If the supporting fact is a violation of the law, the code section must be specified and all required elements must be proven. (See Ibid.)
F 12.60h
Necessity As Defense To Drunk Driving
(VC 23152/VC 23153)
*Add to CJ 12.60:
A person is not guilty of driving under the influence of alcohol or drugs if [he] [she] acted out of necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely:
1. he act charged as criminal was done to prevent a significant and imminent evil, namely, [a threat of bodily harm to oneself or another person] [or] [_______________];
2. here was no reasonable legal alternative to the commission of the act;
3. he reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided;
4. he defendant entertained a good-faith belief that [his] [her] act was necessary to prevent the greater harm
5. hat belief was objectively reasonable under all the circumstances; and
6. he defendant did not substantially contribute to the creation of the emergency.
Points and Authorities
People v. Kearns (97) 55 CA4th 1128, 1134-35 [64 CR2d 654]; see People v. Pena (83) 149 CA3d Supp 14 [197 CR 264]; Toops v. State (IN 1994) 643 NE2d 387 [passenger required to assume control of vehicle when driver jumped into back seat]; see also State v. Cole (SC 1991) 403 SE2d 117; Gibbons v. State (TX 1994) 874 SW2d 164 [driving while intoxicated to attempt to prevent suicide may support necessity defense].)
RESEARCH NOTE: Reiff, Robert S., Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 14-2, p. 358 and § 17.4(r), p. 394.
F 12.60i
Drunk Driving: Defense Theory That Conduct
Was Caused By Psychiatric Disorder
*Add to CJ 12.60:
It is [the] [a] defense theory that the conduct of the accused [before] [and] [after] the arrest was caused [in part,] by a psychiatric disorder rather than impairment from the use of [alcohol] [or] [drugs].
[Consider this theory in light of all the evidence in deciding whether the prosecution has proven beyond a reasonable doubt that the accused drove while intoxicated.]
[After considering this theory, in light of all the evidence, any juror who has a reasonable doubt that the accused drove while intoxicated must give [him] [her] the benefit of that doubt and vote to acquit.]
Points and Authorities
Because a psychiatric illness may manifest itself in the actions of the accused either before or after arrest, expert testimony and a defense theory instruction may be necessary to assure full jury consideration of this defense theory. White v. State (MD 2002) 790 A2d 754 held that the defendant may place before the jury expert testimony regarding a psychiatric profile that provides a psychiatric explanation for conduct appearing to result from alcohol impairment. Psychiatric disorders have long been recognized as being confused with alcohol impairment in the scientific community. (See A.W. Jones, “Medicolegal Alcohol Determinations, Blood Or Breath Alcohol Concentration?,” 12 Forensic Sci. Rev. 23, 26 (2000).) Psychiatric testimony may be used in drunk driving cases. (See e.g., Gombar v. Dept. of Transportation (PA 1996) 678 A2d 843; Ventura v. State (TX 1990) 801 SW2d 225.) White, then, appears to represent something of a breakthrough.
RESEARCH NOTE: See “DWI: I May Be Crazy But I Ain’t Drunk—The Psychiatric Defense To Drunk Driving,” by Leonard R. Stamm, NACDL Champion, July 2002 (www.nacdl.org).
F 12.60j
Drunk Driving: Necessity -– Applicability
Based On Potential For Harm Not Actual Harm
*Add to CJ 12.60:
See FORECITE F 4.43b.