SERIES 2100 VEHICLE OFFENSES
F 2100 Driving Under The Influence Causing Injury (VC 23153(a))
TABLE OF CONTENTS
F 2100.4 Driving Under The Influence Causing Injury—Burden Of Proof Issues
F 2100.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2100.5 Driving Under The Influence Causing Injury—Elements And Definitions
F 2100.5 Inst 1 Driving Under The Influence Causing Injury—Causation: Enumeration Of Requirements As Express Elements Of The Charge
F 2100.5 Inst 2 Failure To Exercise Ordinary Care And Maintain Proper Control Of The Vehicle
F 2100.5 Inst 3 Definition Of Driving (VC 23153(a))
F 2100.5 Inst 4 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 2100.5 Inst 5 Incorporate Definition In Element
F 2100.5 Inst 6 Multiple Injury (VC 23558, formerly VC 23182)
F 2100.5 Inst 7 Applicable VC Violations Must Be Referenced In Respect to Felony DUI Counts (VC 23558 former VC 23182)
Return to Series 2100 Table of Contents.
F 2100.4 Driving Under The Influence Causing Injury—Burden Of Proof Issues
F 2100.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2100.5 Driving Under The Influence Causing Injury—Elements And Definitions
F 2100.5 Inst 1 Driving Under The Influence Causing Injury—Causation: Enumeration Of Requirements As Express Elements Of The Charge
*Add to CC 2100, Element 4, as follows:
This requires the prosecution to prove beyond a reasonable doubt that:
A. Bodily injury to _______________ <name of alleged victim> was likely to happen as a result of the defendant’s (illegal act/ [or] failure to perform a legal duty) if nothing unusual intervened;
AND
B. The likelihood of bodily injury to _______________ <name of alleged victim> would have been known to a reasonable person in the defendant’s situation, considering all the circumstances as they were known by and appeared to the defendant;
AND
C. The injury to _______________ <name of alleged victim> would not have happened without the defendant’s (illegal act/ [or] failure to perform a legal duty);
AND
D. The defendant’s (illegal act/ [or] failure to perform a legal duty) was a substantial factor in causing _______________’s <name of alleged victim> injury.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporate Causation Definition Into Enumerated Elements—See FORECITE F 1551.5 Inst 7.
Tailoring—See FORECITE F 400.2 Inst 1.
Reasonable Person Standard—See FORECITE F 820.5 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 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.
F 2100.5 Inst 2 Failure To Exercise Ordinary Care And Maintain Proper Control Of The Vehicle
*Modify CC 2100 as follows:
[When at issue, move instruction regarding ordinary care and other duties to elements, enumerate the required elements and tailor to the facts.]
Points and Authorities
See FORECITE F 402.5 Inst 6.
F 2100.5 Inst 3 Definition Of Driving (VC 23153(a))
*Add to CC 2100:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
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.
CALJIC NOTE: See FORECITE F 12.60b.
F 2100.5 Inst 4 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 2100, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drove a vehicle _______________ <describe vehicle>;
2. When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] his or her mental or physical abilities were so impaired that he or she was no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances;
3. The impairment of the defendant’s driving was caused by (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug];
3 4. While In addition to driving under the influence, the defendant also (committed an illegal act/ [or] neglected to perform a legal duty);
5. The [act committed was illegal] [the failure to act violated a legal duty]. To prove the defendant’s (act/failure to perform an act) was illegal, the prosecution must prove all of the following beyond a reasonable doubt:
[Insert elements of alleged predicate crime];
AND
4 6. The defendant’s (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person _______________ <name of alleged victim>.
[Delete 3rd and 8th paragraphs.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Tailoring To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Include Elements Of Predicate Offense—In People v. Ellis (1999) 69 CA4th 1334, 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., CC 1700 [burglary], CC 540 & 541 [felony murder], CC 1400 [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.
[See also FORECITE F 402.5 Inst 6.]
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.
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.)
CALJIC NOTE: See FORECITE F 12.60g.
F 2100.5 Inst 5 Incorporate Definition In Element
*Modify CC 2100, paragraph 10, as follows [added language is underlined]:
[The People [also] allege that the defendant failed to perform the following legal (duty/duties) while driving the vehicle: (the duty to exercise ordinary care at all times and to maintain proper control of the vehicle/ ____________ <insert other duty or duties alleged>).] [Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if he or she (does something that a reasonably careful person would not do in the same situation/[or] fails to do something that a reasonably careful person would do in the same situation).]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 2100.5 Inst 6 Multiple Injury (VC 23558, formerly VC 23182)
*Add to CC 2100 [the following instruction should be given when the information charges a multiple injury enhancement under VC 23558 (formerly 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 try to determine, if you can, 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Unanimous Jury Verdict On Special Allegation—A defendant in a criminal case is entitled to have a jury determine unanimously and beyond a reasonable doubt that an allegation increasing the potential sentence is true. (See generally Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348].) Its determination must be preceded by proper instructions regarding the meaning of the statute governing the allegation. (People v. Belmontes (1988) 45 C3d 744, 792.)
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 (1991) 229 CA3d 284, 287.) 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. (CALCRIM does not include a proposed instruction for this enhancement, although it does include a miscellaneous enhancement form instruction. (CC 3251).)
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 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
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 12.60d.
F 2100.5 Inst 7 Applicable VC Violations Must Be Referenced In Respect to Felony DUI Counts (VC 23558 former VC 23182)
*When appropriate, modify Element 3 of CC 2100 to provide as follows [added language is underlined]:
3. While driving under the influence, the defendant also (committed
an illegal act/ [or] neglected to perform a legal duty) namely a violation of __________<insert specific violation relied upon by prosecution>;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—See People v. Minor (1994) 28 CA4th 431, 438-39.
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 12.60e.
