SERIES 2100 VEHICLE OFFENSES
F 2112 Driving While Addicted To A Drug (VC 23152(c))
TABLE OF CONTENTS
F 2112.1 Titles And Identification Of Parties
F 2112.1 Inst 1 Driving While Addicted To A Drug—Title
F 2112.1 Inst 2 Identification Of Prosecution And Defendant
F 2112.2 Driving While Addicted To A Drug—Tailoring To Facts: Persons, Places, Things And Theories
F 2112.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 2112.3 Driving While Addicted To A Drug—Language That Is Argumentative, Confusing, Etc.
F 2112.3 Inst 1 Legal Entitlement To Use Drug Not A Defense—Delete Or Balance
F 2112.4 Driving While Addicted To A Drug—Burden Of Proof Issues
F 2112.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2112.5 Driving While Addicted To A Drug—Elements And Definitions
F 2112.5 Inst 1 Addiction Defined (VC 23152(c))
F 2112.5 Inst 2 Addiction Defined: Withdrawal Must Impair Driving
F 2112.5 Inst 3 Driving While Addicted: Knowledge Element
F 2112.6 Driving While Addicted To A Drug—Defense Theories
F 2112.6 Inst 1 Driving While Addicted To A Drug: Pinpoint Instruction
F 2112.6 Inst 2 Pinpoint Instruction—Driving
F 2112.6 Inst 3 Lack Of Knowledge That Defendant Was Addicted
F 2112.6 Inst 4 Participation In Narcotic Treatment Program As Defense To Driving While Addicted
F 2112.7 Driving While Addicted To A Drug—Preliminary Fact Issues [Reserved]
F 2112.8 Driving While Addicted To A Drug—Unanimity/Duplicity/Multiplicity [Reserved]
F 2112.9 Driving While Addicted To A Drug—Lesser Offense Issues [Reserved]
F 2112 Notes
F 2112 Note 1 Driving While Addicted To A Drug—CALCRIM Cross-References And Research Notes
F 2112 Note 2 Under The Influence Defined: Appreciable Degree
Return to Series 2100 Table of Contents.
F 2112.1 Titles And Identification Of Parties
F 2112.1 Inst 1 Driving While Addicted To A Drug—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2112.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2112.2 Driving While Addicted To A Drug—Tailoring To Facts: Persons, Places, Things And Theories
F 2112.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 2112, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drove a vehicle _______________ <describe vehicle>;
AND
2. When (he/she) drove, the defendant was addicted to a drug _______________ <name of drug>. To prove this the prosecution must prove all of the following beyond a reasonable doubt:
A. The defendant was physically dependent on _______________ <name of drug>, suffering withdrawal symptoms if (he/she) was deprived of it;
AND
B. (He/She) had developed a tolerance to the drug’s effects and therefore required larger and more potent doses;
AND
C. The defendant had become emotionally dependent on ______________ <name of drug>, experiencing a compulsive need to continue its use.
A drug is a substance or combination of substances, other than alcohol, that could so affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinarily cautious person in full possession of his or her faculties and using reasonable care would drive under similar circumstances.
A person is addicted to a drug if he or she:
1. Has become physically dependent on the drug, suffering withdrawal symptoms if he or she is deprived of it;
2. Has developed a tolerance to the drug’s effects and therefore requires larger and more potent doses;
AND
3. Has become emotionally dependent on the drug, experiencing a compulsive need to continue its use.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 2112.3 Driving While Addicted To A Drug—Language That Is Argumentative, Confusing, Etc.
F 2112.3 Inst 1 Legal Entitlement To Use Drug Not A Defense—Delete Or Balance
See FORECITE F 2100.3 Inst 1.
F 2112.4 Driving While Addicted To A Drug—Burden Of Proof Issues
F 2112.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2112.5 Driving While Addicted To A Drug—Elements And Definitions
F 2112.5 Inst 1 Addiction Defined (VC 23152(c))
*Supplement CC 2112 as follows:
You may not convict defendant for driving while addicted to a substance which does not impair driving to an appreciable degree. A person is addicted to a drug when its continued use becomes the primary support of and motive for [his] [her] existence. Mere habitual or customary use which falls short of physical dependence does not constitute addiction.
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Addiction Defined—The rationale for precluding addicts from driving is that they may experience physical infirmities resulting from “withdrawal symptoms” or “abstinence syndrome” which “renders the individual a potential danger on the highway.” (People v. O’Neil (1965) 62 C2d 748, 752-54.) Because “habitual or customary use” does not create the type of dependence necessary for withdrawal symptoms or abstinence syndrome, the trier of fact must not equate habitual use with addiction. (O’Neil, 62 C2d at 755-57.) Moreover, because VC 312 defines “drug” as a substance which impairs driving to an appreciable degree, it follows that the above supplementary instruction—taken from the language in O’Neil 62 C2d at 756 and People v. Victor (1965) 62 C2d 280, 303—assures that the jury will properly understand this distinction.
In People v. Schade REV GTD/DISD/DEPUB (1994) 25 CA4th 1605, 1635-36, the court recognized the need to define addiction and recommended use of the definition contained in CJ 12.45. However, this was in a case charging a violation of HS 11153 (illegal prescription to an addict). When driving is involved, other aspects of addiction (e.g., “withdrawal symptoms” and “abstinence syndrome”) are relevant and, therefore, the FORECITE definition of addiction should be given in a VC 23152(c) prosecution.)
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
Drugs Not Causing Physical Dependency—The O’Neil court recognized that certain drugs (e.g., amphetamines) do not create physical dependence and, therefore, addiction to those drugs should be “defined in terms of emotional or psychological dependence only.” (O’Neil, 62 C2d at 754, fn 10; see also People v. Beasley (1983) 145 CA3d 16, 21.) Hence, because physical dependence causes the withdrawal symptoms or abstinence syndrome which trigger the potential danger on the highway (O’Neil 62 C2d at 753), VC 23152(c) should not apply to drugs which do not produce such physical dependence.
PRACTICE NOTES
Given that the O’Neil and Victor cases are quite old, it may be useful to consult an expert as to modern developments regarding addiction.
RESEARCH NOTES
See Annotation, Automobiles: Driving under the influence, or when addicted to the use, of drugs as criminal offense, 17 ALR3d 815 and Later Case Service.
CALJIC NOTE: See FORECITE F 16.831.1a.
F 2112.5 Inst 2 Addiction Defined: Withdrawal Must Impair Driving
*Modify CC 2112, [Addiction definition] Element 1, as follows:
1. Has become physically dependent on the drug, suffering withdrawal symptoms if he or she is deprived of it and those withdrawal symptoms would impair the defendant’s driving to an appreciable degree if [he] [she] experienced the symptoms while driving;
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Prosecution Must Prove Withdrawal Symptoms Impaired Driving—As set forth in FORECITE F 2112.5 Inst 1 [F 16.831.1a], the rationale for precluding addicts from driving—even if they are not under the influence of a drug (VC 23152(c)) — is that the withdrawal symptoms may render the individual “a potential danger on the highway.” (People v. O’Neil (1965) 62 C2d 748, 752-54.) Hence, because a drug is defined in terms of whether it impairs driving “to an appreciable degree” (VC 312), it follows that the prosecution must prove that defendant’s withdrawal symptoms would have impaired his driving to an appreciable degree. (See also FORECITE F 2112.5 Inst 1 [F 16.831.1a].) (But see FORECITE F 2112 Note 1 [F 16.831 n1].)
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
The prosecution does not have to prove that defendant was actually in withdrawal when he was driving. (O’Neil, 62 C2d at 754.)
CALJIC NOTE: See FORECITE F 16.831.1b.
F 2112.5 Inst 3 Driving While Addicted: Knowledge Element
*Add as element to CC 2112:
3. When (he/she) drove, the defendant knew (he/she) was addicted to a drug.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Knowledge As An Element—See FORECITE F 820.5 Inst 1.
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 2112.6 Driving While Addicted To A Drug—Defense Theories
F 2112.6 Inst 1 Driving While Addicted To A Drug: Pinpoint Instruction
*Add to CC 2212 as follows [CC 3400 adaption]:
The prosecution must prove beyond a reasonable doubt that the defendant was driving while addicted to a drug. The defendant contends (he/she) was not addicted to the drug because (he/she) did not have a compulsive need to continue it’s use. However, the defendant does not have to prove this contention. If you have a reasonable doubt whether the prosecution has proved that the defendant had a compulsive need to continue use of the drug or any other element of the charge, you must find the defendant not guilty.
Points and Authorities
See FORECITE F 315.1.2 Inst 2.
F 2112.6 Inst 2 Pinpoint Instruction—Driving
See FORECITE F 2100.6 Inst 3.
F 2112.6 Inst 3 Lack Of Knowledge That Defendant Was Addicted
*Add to CC 2112 [CC 3400 adaption]:
The prosecution must prove that when the defendant drove, (he/she) knew (he/she) was addicted to a drug. The defendant contends (he/she) did not know (he/she) was addicted. However, the defendant does not need to prove this. The prosecution must prove beyond a reasonable doubt that the defendant knew (he/she) was addicted. If you have a reasonable doubt that the prosecution has proven that the defendant knew (he/she) was addicted to a drug or any other element of the charge, you must find (him/her) not guilty.
Points and Authorities
See FORECITE F 315.1.2 Inst 2.
F 2112.6 Inst 4 Participation In Narcotic Treatment Program As Defense To Driving While Addicted
*Add to CC 2112:
The defendant contends that (he/she) is not guilty of driving while addicted because (he/she) was participating in an approved narcotic treatment program at the time. The prosecution must prove that the defendant was not participating in such a treatment program, the defendant does not need to prove that (he/she) was. If you have a reasonable doubt that the prosecution has proved the defendant was not in a treatment program you must find the defendant 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 Instruction – See VC 23152(c); see also FORECITE F 315.1.2 Inst 2.
Identification Of Parties – See FORECITE F 100.2 Note 1.
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 2112.7 Driving While Addicted To A Drug—Preliminary Fact Issues [Reserved]
F 2112.8 Driving While Addicted To A Drug—Unanimity/Duplicity/Multiplicity[Reserved]
F 2112.9 Driving While Addicted To A Drug—Lesser Offense Issues [Reserved]
F 2112 NOTES
F 2112 Note 1 Driving While Addicted To A Drug—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2125 [Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions]
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.
F 2112Note 2 Under The Influence Defined: Appreciable Degree
See FORECITE F 2110 Note 18.
