SERIES 2100 VEHICLE OFFENSES
F 2100 Driving Under The Influence Causing Injury (VC 23153(a))
TABLE OF CONTENTS
F 2100.6 Inst 1 Jury Consideration Of Defendant’s Legal Entitlement To Use The Drug
F 2100.6 Inst 2 Juror Consideration Of Impairment By Factors Other Then Intoxication
F 2100.6 Inst 3 Pinpoint Instruction—Driving
F 2100.6 Inst 4 Felony Driving Under The Influence: Failure To Advise That Breath Sample Not Retained (VC 23153(a))
F 2100.6 Inst 5 Necessity As Defense To Drunkhttp://www.forecite.com/CALCRIM/2100_Vehicle_Offenses/f-2100_6-9_DrivingUnderTheInfluenceCausingInjury.aspx#F%202100.6%20Inst%205 Driving (VC 23152/VC 23153)
F 2100.6 Inst 6 Drunk Driving: Defense Theory That Conduct Was Caused By Psychiatric Disorder
F 2100.6 Inst 7 Pinpoint Instruction When Defendant And Police Blood Alcohol Tests Conflict
F 2100.6 Inst 8 Drunk Driving: Necessity—Applicability Based On Potential For Harm Not Actual Harm
F 2100.6 Inst 9 Drunk Driving (DUI): Breathalyzer Gender Bias
F 2100.6 Inst 10 Partition Ratios: Evidence Admissible As To Urine Test
F 2100.6 Inst 11 Jurors Must Consider Whether Testing Regulations Were Followed
Return to Series 2100 Table of Contents.
F 2100.6 Inst 1 Jury Consideration Of Defendant’s Legal Entitlement To Use The Drug
*Add to CC 2100, paragraph 17, if it is not deleted (see FORECITE F 2100.3 Inst 1):
However, the defendant’s [alleged] entitlement to legally use the _______________ <name of drug> is a factor to consider, in light of all the surrounding circumstances, in attempting to decide whether the defendant’s driving abilities were impaired.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 2100.6 Inst 2 Juror Consideration Of Impairment By Factors Other Then Intoxication
*Add to CC 2100, paragraph 18, if it is not deleted (see FORECITE F 2100.3 Inst 2):
However, any alleged impairment by other factors is a circumstance to be considered, in light of all the surrounding circumstances in attempting to decide whether the defendant’s [alleged] impairment was caused by alcohol and/or drugs.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2100.6 Inst 3 Pinpoint Instruction—Driving
*Add to CC 2100 as follows:
The prosecution must prove that the defendant was driving the _______________ <describe vehicle>. The defendant contends that (he/she) was not driving because [the vehicle was not moving] [(he/she) was not controlling the vehicle]. The prosecution must prove the defendant controlled the _______________ <describe vehicle> while it was moving. The defendant does not need to prove that [it was not moving] [or] [(he/she) was not controlling it].
If you have a reasonable doubt that the defendant was controlling _______________ <describe vehicle> while it was moving, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Definition Of Driving—A driver is defined as set forth above by VC 305. In People v. Hernandez (1990) 219 CA3d 1177, 1183-84, 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 (1991) 53 C3d 753, 763-69 [disapproving dictum in Hernandez]; see also Music v. DMV (1990) 221 CA3d 841, 848-51.)
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—Steering the car from the passenger seat constitutes driving. (See In re Queen T. (1993) 14 CA4th 1143.)
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 2100.6 Inst 4 Felony Driving Under The Influence: Failure To Advise That Breath Sample Not Retained (VC 23153(a))
*Add to CC 2100:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Re: Failure To Advise—In People v. Alvarado (1986) 181 CA3d Supp 1, 6, 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 (1983) §44:38A.)
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.
CALJIC NOTE: See FORECITE F 12.60c.
F 2100.6 Inst 5 Necessity As Defense To Drunk Driving (VC 23152/VC 23153)
*Add to CC 2100:
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. The 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. There was no reasonable legal alternative to the commission of the act;
3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided;
4. The defendant entertained a good-faith belief that [his] [her] act was necessary to prevent the greater harm;
5. That belief was objectively reasonable under all the circumstances; and
6. The defendant did not substantially contribute to the creation of the emergency.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Necessity And Drunk Driving—People v. Kearns (1997) 55 CA4th 1128, 1134-35; see People v. Pena (1983) 149 CA3d Supp 14; 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].)
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.
RESEARCH NOTE: Reiff, Robert S., Drunk Driving and Related Vehicular Offenses (Lexis, 1999) §14-2, p. 358 and §17.4(r), p. 394.
CALJIC NOTE: See FORECITE F 12.60h.
F 2100.6 Inst 6 Drunk Driving: Defense Theory That Conduct Was Caused By Psychiatric Disorder
Alternative a [CC 3400 adaption]:
The prosecution must prove that the defendant was impaired by drug and/or alcohol intoxication. The defendant contends that (he/she) was not intoxicated and that any impairment (he/she) exhibited was caused by a psychiatric disorder. However, the defendant does not need to prove this contention, the prosecution must disprove it. If you have a reasonable doubt about whether the prosecution has met its burden of proving that the defendant was impaired by intoxication, you must find (him/her) not guilty.
Alternative b [CJ 4.21 and CJ 4.50 adaption]:
*Add to CC 2100:
The defendant has introduced evidence for the purpose of showing that (his/her) 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 evidence in attempting to decide whether the prosecution has proven beyond a reasonable doubt that the accused drove while intoxicated.]
[If after consideration of all the evidence you have a reasonable doubt that the accused drove while intoxicated, you must find (him/her) not guilty.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Defense Theory Based On Psychiatric Illness—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.
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.
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).
CALJIC NOTE: See FORECITE F 12.60i.
F 2100.6 Inst 7 Pinpoint Instruction When Defendant And Police Blood Alcohol Tests Conflict
Alternative a [CC 3400 adaption]:
The prosecution must prove each element of the driving-while-intoxicated charge beyond a reasonable doubt. The defendant contends (he/she) did drive while intoxicated and that the blood alcohol determination by the police was really ________ rather than the level reported by the police. However, the defendant does not need to prove this contention. If, after considering all the circumstances, including the defendant’s blood alcohol contention, you have a reasonable doubt that the defendant drove while intoxicated or any other elements of the charged offense, you must find (him/her) not guilty.
Alternative b [CJ 2.40, CJ 4.21, CJ 4.30 adaption]:
*Add to CC 2100:
The defendant has introduced evidence for the purpose of showing that the blood alcohol determination by the police was inaccurate because [his] [her] blood alcohol level was really __________ rather than the level reported by the police test.
If, after consideration of all the evidence, you have a reasonable doubt as to the accuracy of the police test, you must give the defendant the benefit of that doubt and find that the police test was incorrect. The inaccuracy of the police test may be sufficient by itself to leave you with a reasonable doubt as to whether the 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.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Inaccuracy Of Blood Alcohol Test As Defense Theory—Given that the defendant’s blood alcohol level may raise a presumption of intoxication, the accuracy of the blood alcohol determination is an essential link in the claim of circumstantial evidence which must be proven beyond a reasonable doubt. (People v. Carter (1957) 48 C2d 737, 758-61.) Hence, when the defense theory is that the blood alcohol determination by the police was inaccurate, the defendant should have the right to a pinpoint instruction upon this theory. (People v. Saille (1991) 54 C3d 1103, 1120; People v. Hall (1980) 28 C3d 143, 159.) Because it is the prosecution’s burden to prove intoxication, any defense evidence which is offered to negate an element of the charge is sufficient to leave the jury with a reasonable doubt. [See FORECITE F 301 Inst 13.]
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.
PRACTICE NOTES
As to the reasonable doubt language in the last paragraph of the proposed instruction, counsel should consider whether or not to ask for the last sentence which includes the “by itself” language from CJ 2.40. The first sentence alone (“give the defendant the benefit of any reasonable doubt”) may be more acceptable to some judges as it is analogous to language in several standard CALJIC instructions. (E.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)
CALJIC NOTE: See FORECITE F 12.61a.
F 2100.6 Inst 8 Drunk Driving: Necessity—Applicability Based On Potential For Harm Not Actual Harm
See FORECITE F 3403 Inst 2 and F 3403 Inst 3.
CALJIC NOTE: See FORECITE F 12.60j.
F 2100.6 Inst 9 Drunk Driving (DUI): Breathalyzer Gender Bias
*Add to CC 2100 as follows:
The prosecution is required to prove beyond a reasonable doubt that the defendant drove under the influence. The defendant contends (he/she) was not under the influence even though the blood alcohol content was 0.08 because of gender bias of the breathalyzer device.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
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/
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.
CALJIC NOTE: See FORECITE F 12.60 n17.
F 2100.6 Inst 10 Partition Ratios: Evidence Admissible As To Urine Test
*Add to CC 2100 as follows:
The prosecution is required to prove beyond a reasonable doubt the defendant drove under the influence. The defendant contends that (he/she) was not under the influence and that the blood alcohol test was not accurate.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Right To Instruction Re: Urine Test—Prior to the amendment of VC 23152(b) in 1990, the defendant was permitted to present expert testimony that a person’s blood-to-breath partition ratio varies over time and does not remain constant. (See FORECITE F 2100 Note 16.) However, People v. Bransford (1994) 8 C4th 885, held that because the statute as amended in 1990 defined the offense on the basis of grams of alcohol per 210 liters of breath, any evidence of the partition ratio is irrelevant and, therefore, inadmissible. (Bransford, 8 C4th at 893.)
This analysis, however, is limited to breath or blood tests and does not apply to urine tests because “[t]he statute does not make it a crime to drive with a certain urine-alcohol level.” (People v. Acevedo (2001) 93 C4th 757, 765.) Hence, defendants may challenge results of urine tests on the basis of variable partition ratios as summarized by the Bransford Court:
“Many variables, however, can affect the actual ratio of an individual’s breath-alcohol concentration to blood-alcohol concentration. These variables include body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. [Citations.] Changes in these variables may result in a difference between an individual’s actual blood-alcohol level and the blood-alcohol level determined by applying the standard partition ratio to the breath-test results.
“Courts therefore allowed defendants charged under the predecessor statute to attack breath-test results on the basis of this variability. Defendants were initially allowed to demonstrate only that their personal partition ratio differed from the standard partition ratio. [Citations.] They would do so by simultaneously measuring their breath-alcohol concentration and blood-alcohol concentration over a period of time. [Citations.] Later courts also allowed defendant to demonstrate that partition ratios differ among individuals generally. [Citations.] Defendant would usually do so by having an expert testify that the standard partition ratio is merely an approximation and that different individuals have different personal partition ratios. [Citations.]” (People v. Bransford, supra, 8 C4th at p. 889.)
Therefore, it is a violation of the 6th Amendment right to confrontation to preclude the defendant from offering partition ratio evidence to challenge a urine test. (See People v. Acevedo (2001) 93 CA4th 757, 765; see also Alford v. U.S. (1931) 282 US 687, 692 [75 LEd2d 624; 51 SCt 218]; see also generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
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.
CALJIC NOTE: See FORECITE F 12.61 n6.
F 2100.6 Inst 11 Jurors Must Consider Whether Testing Regulations Were Followed
*Modify CC 2100, paragraph 7, as follows [added language is underlined; 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 2100.7 Driving Under The Influence Causing Injury—Preliminary Fact Issues[Reserved]
F 2100.8 Driving Under The Influence Causing Injury—Unanimity/Duplicity/Multiplicity[Reserved]
F 2100.9 Lesser Offense Issues[Reserved]
