SERIES 2100 VEHICLE OFFENSES
F 2125 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions (VC 23550, VC 23550.5 & VC 23566)
TABLE OF CONTENTS
F 2125.1 Titles And Identification Of Parties
F 2125.1 Inst 1 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions —Title
F 2125.1 Inst 2 Identification Of Prosecution And Defendant
F 2125.2 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2125.3 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—Language That Is Argumentative, Confusing, Etc.
F 2125.3 Inst 1 Jurors Not Required To Decide
F 2125 Notes
F 2125 Note 1 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—CALCRIM Cross-References And Research Notes
F 2125 Note 2 DUI: Attempt Is Not A Prior Conviction (VC 23550 (former VC 23175))
F 2125 Note 3 DUI Recidivist Statute: Subsequent Offenses Cannot Be Used To Increase Penalty For Prior Offense
F 2125 Note 4 DUI: Definition Of Driving (VC 23152(b) & VC 23550 (formerly VC 23175))
Return to Series 2100 Table of Contents.
F 2125.1 Titles And Identification Of Parties
F 2125.1 Inst 1 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions —Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2125.1 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 2125.2Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2125.3 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—Language That Is Argumentative, Confusing, Etc.
F 2125.3 Inst 1 Jurors Not Required To Decide
*Modify CC 2125, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
If you find the defendant guilty of ([causing injury while] driving under the influence/ [or] [causing injury while] driving with a blood alcohol level of 0.08 percent or more), [or the lesser offense of driving under the influence [or driving with a blood alcohol level of 0.08 percent or more]], you must then determine try to decide, if you can, whether the People have proved the additional allegation that the defendant has been convicted of (another/other) driving under the influence offense[s] before. It has already been determined that the defendant is the person named in exhibits _________ <insert numbers or descriptions of exhibits>. You must try to decide, if you can, whether the evidence proves that the defendant was convicted of the alleged crime[s].
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 2125 NOTES
F 2125 Note 1 Driving Under The Influence Or With 0.08 Percent Blood Alcohol: Prior Convictions—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
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 2125 Note 2 DUI: Attempt Is Not A Prior Conviction (VC 23550 (former VC 23175))
Although attempted driving under the influence is an offense (People v. Garcia (1989) 214 CA3d Supp 1, an attempt may not be used as a prior for enhanced punishment under VC 23550 (former VC 23175). That section speaks only in terms of completed violations and makes no reference to attempts. Moreover, even if the statute could be considered ambiguous on this point, the defendant must receive the benefit of the more lenient construction. (See People v. Garfield (1985) 40 C3d 192, 200.)
CALJIC NOTE: See FORECITE F 12.65 n1.
F 2125 Note 3 DUI Recidivist Statute: Subsequent Offenses Cannot Be Used To Increase Penalty For Prior Offense
VC 23550 (former VC 23175) permits subsequent offenses and convictions to be used to increase the penalty for a first offense. (People v. Snook (1997) 16 C4th 1210 [legislative intent of VC 23550 (former VC 23175) was to punish repeat offenders with enhanced penalties, regardless of the order in which the offenses were committed or the convictions obtained].) Snook held that the imposition of an enhanced penalty on a fourth DUI conviction for an offense pre-dating the triggering violations does not contravene the proscription against ex post facto laws as long as the commission of the underlying VC 23550(a) (former VC 23175(a)) offense occurred after the statute’s 1984 amendment became effective).
CITATION NOTE: Re: People v. Snook (1997) 16 C4th 1210. Following the Supreme Court’s decision in Snook, the matter was remanded and decided again by the Court of Appeal. A new petition for review was granted as to this subsequent opinion and transferred back to the Court of Appeal again. This action as to the second Petition for Review vacates the second court of appeal decision but not the earlier Supreme Court decision. Notwithstanding an indication in LEXIS that the original Supreme Court opinion is “not citable, superseded by a grant of review,” the opinion is fully citable authority. (See Rule 8.1105(a) (formerly Rule 976a, California Rules of Court.) (FORECITE has confirmed this with the Reporter of Decisions.)
CALJIC NOTE: See FORECITE F 12.65 n3.
F 2125 Note 4 DUI: Definition Of Driving (VC 23152(b) & VC 23550 (formerly VC 23175))
See FORECITE F 2100.5 Inst 3, re: definition of driving.
CALJIC NOTE: See FORECITE F 12.66 n1.