SERIES 2100 VEHICLE OFFENSES
F 2100 Driving Under The Influence Causing Injury (VC 23153(a))
TABLE OF CONTENTS
F 2100.1 Titles And Identification Of Parties
F 2100.1 Inst 1 Driving Under The Influence Causing Injury—Title
F 2100.1 Inst 2 Identification Of Prosecution And Defendant
F 2100.2 Driving Under The Influence Causing Injury—Tailoring To Facts: Persons, Places, Things And Theories
F 2100.2 Inst 1 Driving Under The Influence Causing Injury – Specification Of Person Injured
F 2100.3 Driving Under The Influence Causing Injury—Language That Is Argumentative, Confusing, Etc.
F 2100.3 Inst 1 Delete Argumentative Language: Legal Entitlement To Use Drug Not A Defense
F 2100.3 Inst 2 Other Cause Of Impairment Not A Defense—Delete As Argumentative
F 2100.3 Inst 3 Jurors Must Consider Relevant Evidence
F 2100.3 Inst 4 Delete Argumentative Language
F 2100.3 Inst 5 Credibility Of Injured Witness (Civil Code 3333.4)
F 2100.3 Inst 6 Jurors May Consider Blood Alcohol Levels Below 0.08%
F 2100.3 Inst 7 Delete Argumentative Inference From Blood Alcohol Level Of 0.08% Or More
Return to Series 2100 Table of Contents.
F 2100.1 Titles And Identification Of Parties
F 2100.1 Inst 1 Driving Under The Influence Causing Injury—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2100.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2100.2 Driving Under The Influence Causing Injury—Tailoring To Facts: Persons, Places, Things And Theories
F 2100.2 Inst 1 Driving Under The Influence Causing Injury – Specification Of Person Injured
See FORECITE F 2101.2 Inst 1.
F 2100.3 Driving Under The Influence Causing Injury—Language That Is Argumentative, Confusing, Etc.
F 2100.3 Inst 1 Delete Argumentative Language: Legal Entitlement To Use Drug Not A Defense
*Delete CC 2100, paragraph 17, which provides:
[It is not a defense that the defendant was legally entitled to use the drug.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 402.5 Inst 6.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
Alternatively, balancing language should be added. (See FORECITE F 2100.6 Inst 1.)
F 2100.3 Inst 2 Other Cause Of Impairment Not A Defense—Delete As Argumentative
*Delete CC 2100, paragraph 18, which provides:
[If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 402.5 Inst 6.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
Alternatively, balancing language should be added. (See FORECITE F 2100.6 Inst 1.)
F 2100.3 Inst 3 Jurors Must Consider Relevant Evidence
*Modify CC 2100, paragraph 7, 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 2100.3 Inst 4 Delete Argumentative Language
*Modify CC 2100, paragraph 17, 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 2100.3 Inst 5 Credibility Of Injured Witness (Civil Code 3333.4)
*Add to CC 2100 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Financial Interest Of The Witness—Civil Code 3333.4 (Stats. 1996, Prop. 213, § Civil Justice Reform) 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.
NOTE: The constitutionality of CC 3333.4 has been ruled on in Yoshioka v. Superior Court (Todd) (1997) 58 CA4th 972 [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).
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]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.60f.
F 2100.3 Inst 6 Jurors May Consider Blood Alcohol Levels Below 0.08%
See FORECITE F 2101.3 Inst 4.
F 2100.3 Inst 7 Delete Argumentative Inference From Blood Alcohol Level Of 0.08% Or More
See FORECITE F 2101.3 Inst 5.
