SERIES 2100 VEHICLE OFFENSES
F 2100 NOTES
TABLE OF CONTENTS
F 2100 Note 1 Driving Under The Influence Causing Injury—CALCRIM Cross-References And Research Notes
F 2100 Note 2 DUI: Joy Riding And Leaving The Scene On Foot Insufficient To Satisfy “Other Act” Element (VC 23153(a))
F 2100 Note 3 Weaving As LRO Of DUI (VC 23152(a))
F 2100 Note 4 DUI: Admissibility Of “HGN” Test (VC 23153(a))
F 2100 Note 5 Administrative Suspension Of License Does Not Bar DUI Charges
F 2100 Note 6 Consciousness Of Guilt From Defendant’s Refusal To Submit To Blood Or Sobriety Tests
F 2100 Note 7 Felony Drunk Driving: Sua Sponte Duty To Define “Speeding” When It Is An Element Of The Charge
F 2100 Note 8 Drunk Driving: Wobbler Reduced To Misdemeanor Is Not Prior Felony Conviction (Former VC 23175.5—Now VC 23550.5)
F 2100 Note 9 Drunk Driving: Applicability Of Accomplice Liability—Co-Perpetrator (PC 191.5/PC 192(c)(3))
F 2100 Note 10 Drunk Driving: Aiding And Abetting Liability—Intoxication To Negate Knowledge And Intent
F 2100 Note 11 DUI: Breath Test Observation Requirement (VC 23152)
F 2100 Note 12 DUI: Causing Serious Bodily Injury Is Not A “Crime of Violence”
F 2100 Note 13 DUI: Suspension Of License (VC 13353) For Refusing Test (VC 23612)
F 2100 Note 14 Inference Of Intoxication: Research Notes (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
F 2100 Note 15 Reversible Error To Instruct Where Breath Analysis Is Less Than Statutory Minimum (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
F 2100 Note 16 Partition Ratio Presumption (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
F 2100 Note 17 Drunken Driving (DUI): Defense Burden To Show Blood Test Not Properly Performed
F 2100 Note 18 Admissibility Of Blood Alcohol Test That Fails To Comply With Regulations
Return to Series 2100 Table of Contents.
F 2100 Note 1 Driving Under The Influence Causing Injury—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 595 [Vehicular Manslaughter: Speeding Laws Defined]
CALCRIM 2101 [Driving With 0.08 Percent Blood Alcohol Causing Injury]
CALCRIM 2126 [Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions — Bifurcated Trial]
Research Notes:
See CLARAWEB Forum, Vehicle Offenses—Series 2100.
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 Note 2 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 (1990) 220 CA3d 211, 216; 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 so 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.
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 (1990) 219 CA3d 1177, 1184-85, 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.]
CALJIC NOTE: See FORECITE F 12.60 n1.
F 2100 Note 3 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.]
CALJIC NOTE: See FORECITE F 12.60 n3.
F 2100 Note 4 DUI: Admissibility Of “HGN” Test (VC 23153(a))
In People v. Leahy (1994) 8 C4th 587, 612, 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.
CALJIC NOTE: See FORECITE F 12.60 n7.
F 2100 Note 5 Administrative Suspension Of License Does Not Bar DUI Charges
People v. Superior Court (Moore) (1996) 50 CA4th 1202, 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.
CALJIC NOTE: See FORECITE F 12.60 n10.
F 2100 Note 6 Consciousness Of Guilt From Defendant’s Refusal To Submit To Blood Or Sobriety Tests
See FORECITE F 371(A) Note 4 and F 2130 Note 6.
CALJIC NOTE: See FORECITE F 12.60 n12.
F 2100 Note 7 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 (1999) 69 CA4th 1334, 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.)
CALJIC NOTE: See FORECITE F 12.60 n13.
F 2100 Note 8 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, [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].)
CALJIC NOTE: See FORECITE F 12.60 n14.
F 2100 Note 9 Drunk Driving: Applicability Of Accomplice Liability—Co-Perpetrator (PC 191.5/PC 192(c)(3))
See People v. Verlinde (2002) 100 CA4th 1146 [co-perpetrator accomplice liability where two intoxicated persons operate the same vehicle].
CALJIC NOTE: See FORECITE F 12.60 n15.
F 2100 Note 10 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.) 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.)
CALJIC NOTE: See FORECITE F 12.60 n16.
F 2100 Note 11 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.)
CALJIC NOTE: See FORECITE F 12.60 n18.
F 2100 Note 12 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].
CALJIC NOTE: See FORECITE F 12.60 n20.
F 2100 Note 13 DUI: Suspension Of License (VC 13353) For Refusing Test (VC 23612)
A person lawfully arrested for the offense of driving under the influence may have his or her driver’s license suspended under VC 13353 for refusing to take or complete a chemical test as required by the “implied consent” statute (see VC 23612), in the absence of a finding that he or she was actually driving at the time of the alleged offense. (Troppman v. Valverde (2007) 40 C4th 1121.)
CALJIC NOTE: See FORECITE F 12.60 n21.
F 2100 Note 14 Inference Of Intoxication: Research Notes (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
See Annotation, Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 ALR4th 149 and Later Case Service.
CALJIC NOTE: See FORECITE F 12.61 n1.
F 2100 Note 15 Reversible Error To Instruct Where Breath Analysis Is Less Than Statutory Minimum (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
In People v. Wood (1989) 207 CA3d Supp 11, the defendant’s blood test produced results of .089 and .090. (Id., at 14.) The trial court instructed the jury that it must presume the defendant to be under the influence of alcohol if his blood alcohol level was .10% or more. [Now, the level is .08% or more.] The reviewing court held that it was reversible error to give the instruction because it is error to give an instruction which correctly states a principle of law which has no application to the facts of the case. (Id. at 15.)
The court concluded that the error was prejudicial because the defendant’s blood alcohol readings were so close to the .10% level that they allowed the jury to “borrow” the .10% presumption.
NOTE: The instruction in Wood used the statutory “presumption” language—not CJ 12.61.)
CALJIC NOTE: See FORECITE F 12.61 n2.
F 2100 Note 16 Partition Ratio Presumption (VC 23152(a)/VC 23153(a)/VC 23610 (former VC 23155))
ALERT: People v. Bransford (1994) 8 C4th 885, 893 held that evidence of individual variance in partition ratios for converting breath-alcohol level to blood-alcohol level is not admissible. (But see FORECITE F 12.61 n6 [Partition Ratios: Evidence Admissible As To Urine Test].)
The machine used in a breath test is designed to convert the percentage of alcohol in the breath to alcohol in the blood by using a blood-to-breath partition ratio of 2100/1 as dictated by the State. (People v. Oliver (1989) 215 CA3d Supp 1, 3.) While the legislature has not enacted a statutory presumption as to the correct partition ratio, the courts have held that a defendant is presumed to have a 2100/1 blood-to-breath partition ratio, unless he presents evidence to the contrary. (Oliver, at 5-6.)
In People v. Herst (1987) 197 CA3d Supp 1, 3-4, the court held that such contrary evidence is presented by the defense the prosecution may obtain an instruction informing the jury of the presumption.
However, where the defendant presents expert testimony that “a person’s blood-to-breath partition ratio varies over time and does not remain constant, it is error to give the presumption instruction. The fact presumed by the instruction—consistency of one’s partition ratio—is placed in doubt by such testimony.” (People v. McDonald (1988) 206 CA3d 877; see also, People v. Lepine (1989) 215 CA3d 91; People v. Thompson (1989) 215 CA3d Supp 7.) The expert testimony need not relate specifically to the defendant’s own petition ratio; general evidence about the variability of this ratio is sufficient. (People v. Lepine, 215 CA3d at 98-101.)
Moreover, in People v. Cortes (1989) 214 CA3d Supp 12, the court found “no basis for a presumption such as implied in Herst.” The Cortes court reasoned that even in the absence of specific partition ratio evidence, a lower partition ratio could be inferred from factors such as the amount of alcohol consumed or the defendant’s driving behavior, and field sobriety tests were consistent with sobriety.
Under this analysis, the partition ratio presumption violates the defendant’s 14th Amendment federal constitutional right to due process by shifting and lessening the prosecution’s burden of proof as to an element of the charge. [See authorities cited at FORECITE PG VII(C).]
RESEARCH NOTES
See Annotation, Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 ALR4th 155 and Later Case Service.
CALJIC NOTE: See FORECITE F 12.61 n3.
F 2100 Note 17 Drunken Driving (DUI): Defense Burden To Show Blood Test Not Properly Performed
(See Petricka v. DMV (2001) 89 CA4th 1341, 1348 [if DMV satisfies prima facie case for DUI, burden shifts to licensee to show that blood test was not properly performed].)
CALJIC NOTE: See FORECITE F 12.61 n4.
F 2100 Note 18 Admissibility Of Blood Alcohol Test That Fails To Comply With Regulations
People v. Williams (2002) 28 C4th 408, 418, held that preliminary alcohol screening test results may be admissible at trial despite the lack of compliance with regulations governing such testing. (See Cal. Code Regs., tit. 17, §§1215-1221.5.)
CALJIC NOTE: See FORECITE F 12.61 n5.
