SERIES 2100 VEHICLE OFFENSES
F 2101 Driving With 0.08 Percent Blood Alcohol Causing Injury (VC 23153(B))
TABLE OF CONTENTS
F 2101.1 Titles And Identification Of Parties
F 2101.1 Inst 1 Driving with 0.08 Percent Blood Alcohol Causing Injury – Title
F 2101.1 Inst 2 Identification Of Prosecution And Defendant
F 2101.2 Driving with 0.08 Percent Blood Alcohol Causing Injury – Tailoring To Facts: Persons, Places, Things And Theories
F 2101.2 Inst 1 Driving with 0.08 Percent Blood Alcohol Causing Injury: Specification Of Person Injured
F 2101.3 Driving with 0.08 Percent Blood Alcohol Causing Injury – Language That Is Argumentative, Confusing, Etc.
F 2101.3 Inst 1 Jurors Must Consider Relevant Evidence
F 2101.3 Inst 2 Delete Argumentative Language
F 2101.3 Inst 3 Credibility Of Injured Witness (Civil Code 3333.4)
F 2101.3 Inst 4 Jurors May Consider Blood Alcohol Levels Below 0.08%
F 2101.3 Inst 5 Delete Argumentative Inference From Blood Alcohol Level Of 0.08% Or More
F 2101.3 Inst 6 Presumptions From And Consideration Of Blood Alcohol Level Evidence
F 2101.4 Driving with 0.08 Percent Blood Alcohol Causing Injury – Burden Of Proof Issues
F 2101.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2101.4 Inst 2 Presumption Of Innocence Remains Even If Blood Alcohol Level Is 0.05% Or More
F 2101.4 Inst 3 Mandatory Presumption From Blood Alcohol Below 0.05%
F 2101.4 Inst 4 Rebuttable Presumption From Blood Alcohol Below 0.05%
F 2101.4 Inst 5 No Reliance Upon Less Than 0.05% To Convict
Return to Series 2100 Table of Contents.
F 2101.1 Titles And Identification Of Parties
F 2101.1 Inst 1 Driving with 0.08 Percent Blood Alcohol Causing Injury – Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2101.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1 and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2101.2 Driving with 0.08 Percent Blood Alcohol Causing Injury – Tailoring To Facts: Persons, Places, Things And Theories
F 2101.2 Inst 1 Driving with 0.08 Percent Blood Alcohol Causing Injury: Specification Of Person Injured
*Modify CC 2101, Element 4, as follows [added language is underlined; deleted language is stricken]:
4. The defendant’s (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person ________ <insert name of person alleged to be injured>.
Points and Authorities
See FORECITE F 400.2 Inst 2.
F 2101.3 Driving with 0.08 Percent Blood Alcohol Causing Injury – Language That Is Argumentative, Confusing, Etc.
F 2101.3 Inst 1 Jurors Must Consider Relevant Evidence
*Modify CC 2101, paragraph 4, as follows [deleted language is stricken]:
[In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]
Points and Authorities
See FORECITE F 105.2 Inst 1.
F 2101.3 Inst 2 Delete Argumentative Language
*Modify CC 2101, paragraph 13, as follows [deleted language is stricken]:
[There may be more than one cause of injury. An act causes bodily injury to another person only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the injury.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 2101.3 Inst 3 Credibility Of Injured Witness (Civil Code 3333.4)
See FORECITE F 2100.3 Inst 5.
F 2101.3 Inst 4 Jurors May Consider Blood Alcohol Levels Below 0.08%
*Add to CC 2101, paragraph 6, as follows:
If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis the defendant’s blood alcohol level was 0.05% or more, but fails to establish beyond a reasonable doubt that it was 0.08% or more, you may consider this blood alcohol level, along with other competent evidence, in determining whether or not defendant was under the influence at the time of the alleged offense.
If the evidence fails to prove beyond a reasonable doubt that, at the time of the chemical analysis, the defendant’s blood alcohol level was 0.05% or more, you may not rely on the blood alcohol evidence to convict defendant. You may, however, rely on it to conclude that the prosecution has not met its burden of proving beyond a reasonable doubt that defendant was under the influence.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Need For Instruction – There are two distinct offenses defined by VC 23153. One (VC 23153(a)) requires commission of an unlawful act while driving “under the influence.” The other (VC 23153(b)) requires commission of an unlawful act while driving with a 0.08% or more blood alcohol level. Hence, VC 23153(a) uses a subjective measure of impairment, while VC 23153(b) uses an objective measure. (See Burg v. Muni Court (1983) 35 C3d 257, 264-65.)
The presumptions set forth in VC 23610(a) (former VC 23155(a)) relate to whether the defendant was “under the influence,” and thus, they are relevant only to a VC 23153(a) charge. (VC 23153(b) sets up a separate presumption applicable to a charge based on the objective (0.08%) measure of impairment.) (See CC 2101; CC 2111.) Accordingly, even without the statutory presumptions of VC 23610(a) (former VC 23155(a)), when a violation of VC 23153(a) is charged, the prosecution is required to prove beyond a reasonable doubt that the defendant was under the influence. (In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].) And this, of course, requires the jury to presume that the defendant was not under the influence. (Ibid.)
It is in this context that the presumption in VC 23610 (former VC 23155) should be examined. Thus, VC 23610(a)(3) (former VC 23155(a)(3)) has been interpreted to create only a permissive inference from a blood alcohol of 0.08% or more. (See People v. Milham (1984) 159 CA3d 487, 501-05; CJ 12.61.) In other words, even if the prosecution proves beyond a reasonable doubt that the blood alcohol level was 0.08% or more when tested, this is simply one fact which the jury “may” consider in determining whether the prosecution has overcome the underlying presumption that the defendant was not under the influence.
Instructing upon the provisions of VC 23610(a)(1) (former VC 23155(a)(1)) (less than 0.05%) and VC 23610(a)(2) (former VC 23155(a)(2)) (more than 0.05% but less than 0.08%) requires caution because the underlying constitutional presumption that the defendant is not under the influence must not be diluted. Because every defendant is presumed not to be under the influence regardless of their blood alcohol level, the jury could well be confused or misled if the instructions imply that a certain blood alcohol level must be present before it can be presumed that the defendant was not under the influence. To avoid this danger, the jury could simply be instructed upon the prosecution’s burden that the blood alcohol level at the time of testing may be considered without any reference to different levels. (For this alternative, use the first three paragraphs above.)
Otherwise, each reference to a specific blood alcohol level should clearly relate the specific blood alcohol level to the jury’s consideration of the evidence and not imply that the evidence reduces the prosecution’s burden or places any burden whatsoever upon the defendant. (For this alternative, use all seven paragraphs above.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
.05% Presumption Instruction Not Required When Prosecution Relies Upon Combined Influence Of Alcohol And Drugs (VC 23153(a)) – See People v. Andersen (1994) 26 CA4th 1241, 1250.
RESEARCH NOTE – For general form instructions relating to presumptions, see Deerings Annotated EC 600, et seq.
CALJIC NOTE: See FORECITE F 12.61b.
F 2101.3 Inst 5 Delete Argumentative Inference From Blood Alcohol Level Of 0.08% Or More
*Delete CC 2101, paragraph 3, which provides:
[If the People have proved beyond a reasonable doubt that a sample of the defendant’s (blood/breath) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Permissive Inference As Improperly Argumentative Comment On The Evidence – A jury instruction is improperly argumentative if it directs the jury’s attention to specific evidence and “impl[ies] the conclusion to be drawn from that evidence.” (People v. Harris (1989) 47 C3d 1047, 1098, fn. 31; People v. Wright (1988) 45 C3d 1126, 1137.) In other words, an instruction must not “invite the jury to draw inferences favorable to only one party from the evidence presented at trial … [Citation.]” (People v. Carter (2003) 30 C4th 1166, 1225; see also State v. Cathey (KS 1987) 741 P2d 738, 749 [“When instructing a jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law”].)
Logically, this rule should preclude permissible inference instructions which simply inform the jurors about a specific inference that they “may but are not required to” make from particular evidence. As observed in a 9th Circuit opinion, “inference instructions in general are a bad idea.” (U.S. v. Warren (9th Circuit 1994) 25 F3d 890, 900, Rymer, J., concurring; see also 9th Circuit Model Jury Instructions – Criminal 3.8, Comment [Direct And Circumstantial Evidence] (2000) [“Matters which might be the subject of [permissive inference] instructions are better left to argument of counsel subject to prior clearance with the court”]; but see U.S. v. Dixon (9th Cir. 2000) 201 F3d 1223, 1232-33.) “There is normally no need for the court to pick out one of several inferences that may be drawn from circumstantial evidence in order for that possible inference to be considered by the jury. Inferences can be argued without benefit of an instruction; indeed, inferences are more appropriately argued by counsel than accentuated by the court. Further, because they are a detour from the law which applies to the case, inference instructions tend to take the focus away from the elements that must be proved. In this way, they do a disservice to the goal of clear, concise and comprehensible statements of the law for lay persons on the jury. Balanced inference instructions are also difficult to craft.” (Warren, 25 F3d at 900, Rymer, J., concurring.)
For example, in U.S. v. Rubio-Villareal (9th Cir. 1992) 967 F2d 294, 295-300, the jury was instructed that it could infer knowledge of contraband contained in an automobile from the fact that the defendant was the driver of the vehicle and that the contraband was found inside the vehicle and concealed in its body. The 9th Circuit concluded that the instruction was an improper comment on the evidence which suggested that the judge thought there was sufficient evidence to convict and “by focusing the jury on two isolated facts, the instruction permitted the jury to convict without considering all the evidence presented at trial.” (967 F2d at 300; see also U.S. v. Beltran-Garcia (9th Cir. 1999) 179 F3d 1200, 1207 [court pointed out the dangers of permissive inference instructions and stated that “[t]he government receives very little benefit from requesting these instructions, and should be discouraged from doing so”].)
The instruction in Rubio-Villareal was held to be improper even though it specifically informed the jury that “you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrants any inference which the law permits the jury to draw.” (967 F2d at 295.) Hence, the issue was not that the inference improperly shifted the burden, but rather that it improperly focused the jury’s attention on specific evidence which is often the basis used for refusing a similar defense instruction which focuses on particular evidence.
Another example is State v. Jenkins (WV 1994) 443 SE2d 244, where the jury was instructed, inter alia, as follows:
The defendant’s state of mind may be inferred from the kind of weapon used … you may infer that the defendant intended to kill if he/she used a dangerous weapon.
The court concluded that this instruction was erroneous because it focused the jury’s deliberation on the single fact of shooting with a deadly weapon. (443 SE2d at 256.)
Similarly, State v. Olson (MN 1992) 482 NW2d 212, 215-16, held that a permissive inference of knowing possession, although constitutional, improperly gave undue emphasis to a single factor in the determination of the issue of constructive possession. (See also State v. LaBatte (MN 1992) 482 NW2d 217, 218 [permissive inference of knowing possession from defendant’s control of the automobile where the object was found was an improper focus upon only a single factor]; Minnesota Jury Instruction Guides – Criminal, CRIMJIG 20.57, comment [Additional Issue- Possession Of A Firearm] (West, 4th ed. 1999).)
As the Oregon instruction committee observed, there are several reasons not to give permissive inference instructions:
“(1) In criminal cases, these instructions may unconstitutionally shift the burden of proof on an element of the crime from the prosecution to the defense. [Citations.]
(2) Instructions on a particular piece emphasize that evidence and may imply that the jury should accept the evidence or draw the suggested inference. [Citation.]
(3) The instructions tell jurors no more than they know by the exercise of common sense.
(4) These instructions invade the jury’s responsibility as the sole trier of fact. [Citations.]” (Uniform Criminal Jury Instructions (Oregon), UCrJI User’s Guide V, 1-4.) [Inference And Evidentiary Instructions] (Oregon State Bar, 1998).)
“The judge is the only nonpartisan lawyer in the courtroom, from whom the jury may properly expect a dispassionate and unslanted statement of the pertinent law. [Citations.]” (O’Malley, Grenig & Lee, Federal Jury Practice and Instructions 8.02, [History Of Special Verdicts] p. 245 (West, 5th ed. 2000).) Hence, the “court has [a] duty to give balanced instructions…” (Id. at fn 4 [citing U.S. v. Matias (2nd Cir. 1988) 836 F2d 744.) “There should be absolute impartiality as between the People and the defendant in the matter of instructions …” (People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].) Indeed, instructions which improperly favor the prosecution may violate the due process clause (5th and 14th Amendments) of the federal constitution. [See also FORECITE PG VII(C)(21) [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].]
In sum, an inference instruction which favors the prosecution may be subject to objection as an improper comment on the evidence.
[See also generally FORECITE F 416.3 Inst 4.]
[See also FORECITE F 370 Inst 7; F 376 Inst 3.]
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2101.3 Inst 6 Presumptions From And Consideration Of Blood Alcohol Level Evidence
See FORECITE F 12.61b.
F 2101.4 Driving with 0.08 Percent Blood Alcohol Causing Injury – Burden Of Proof Issues
F 2101.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 2100.4 Inst 1.
F 2101.4 Inst 2 Presumption Of Innocence Remains Even If Blood Alcohol Level Is 0.05% Or More
See FORECITE F 12.61c.
F 2101.4 Inst 3 Mandatory Presumption From Blood Alcohol Below 0.05%
See FORECITE F 12.61d.
F 2101.4 Inst 4 Rebuttable Presumption From Blood Alcohol Below 0.05%
See FORECITE F 12.61e.
F 2101.4 Inst 5 No Reliance Upon Less Than 0.05% To Convict
See FORECITE F 12.61f.