SERIES 2100 VEHICLE OFFENSES
F 2130 Refusal—Consciousness Of Guilt
TABLE OF CONTENTS
F 2130.1 Refusal: Preliminary Facts
F 2130.1 Inst 1 Title Modification In Light Of Preliminary Facts
F 2130.1 Inst 2 Refusal: Required Preliminary Facts
F 2130.1 Inst 3 Refusal Must Relate To Charged Crime: Preliminary Fact
F 2130.1 Inst 4 Refusal After Accusation: Knowledge Of Accusation As Preliminary Fact
F 2130.1 Inst 5 Refusal Must Be Willful
F 2130.2 Refusal: Limiting Instructions
F 2130.2 Inst 1 Defendant’s Refusal May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt”—Not That Defendant Was “Aware Of His Or Her Guilt”
F 2130.2 Inst 2 Refusal: Inapplicable To Nature Or Degree Of Guilt
F 2130.2 Inst 3 Refusal: Limitation When Not Applicable To All Charged Offenses
F 2130.2 Inst 4 Refusal: Limitation To Applicable Co-Defendant
F 2130.3 Refusal: Cautionary Instructions
F 2130.3 Inst 1 Defendant’s Refusal: Prosecution Must Prove Every Essential Fact
F 2130.3 Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
F 2130.3 Inst 3 Refusal: Probative Value Reduced By Passage Of Time
F 2130.3 Inst 4 Refusal: “Feelings Of Guilt” Do Not Reflect Actual Guilt
F 2130.3 Inst 5 Intent To Avoid Arrest Does Not Necessarily Reflect Consciousness Of Guilt—Alternative Explanations: E.g., Defendant Didn’t Trust Or Understand The Test
F 2130.3 Inst 6 Refusal: Alternative Explanations
Return to Series 2100 Table of Contents.
F 2130.1 Refusal: Preliminary Facts
F 2130.1 Inst 1 Title Modification In Light Of Preliminary Facts
*Modify Title as follows [added language is underlined; deleted language is stricken]:
Alleged Refusal—Consciousness Of Guilt
Points and Authorities
See FORECITE F 362.1 Inst 1.
F 2130.1 Inst 2 Refusal: Required Preliminary Facts
*Add to end of CC 2130:
Alternative a [Evidence offered by prosecution: CALCRIM 376 & 1400 Format—Not Alone Sufficient To Convict]:
The prosecution contends you should consider the defendant’s alleged refusal to submit to a chemical test.
However, you must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:
1. The defendantrefused to submit to a chemical test; AND
2. The defendant did so willfully and with the intent of avoiding arrest; AND
3. The defendant intended to avoid arrest because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
4. If and when the defendant [thought (he/she) had done something wrong] [had feelings of guilt] such [thought] [feelings] related to the charged crime.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the defendant’s alleged refusal to submit to a chemical test.
If you [all] find the above preliminary fact to exist, then you [may] [must] consider the defendant’s alleged refusal to submit to a chemical test in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [No Specification Of Burden]:
Before considering the defendant’s allegedrefusal to submit to a chemical test, you must find that:
1. The defendantrefused to submit to a chemical test; AND
2. The defendant did so willfully and with the intent of avoiding arrest; AND
3. The defendant intended to avoid arrest because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
4. The defendant’s [thoughts of wrongdoing] [feelings of guilt] related to the charged crime.
Unless you find all of these preliminary facts to exist, you must the defendant’s alleged flight.
Points and Authorities
See FORECITE F 372.1 Inst 2.
F 2130.1 Inst 3 Refusal Must Relate To Charged Crime: Preliminary Fact
*Add to CC 2130:
Alternative a:
The prosecution contends you should consider the defendant’s alleged refusal to submit to a chemical test.
However, you must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:
The defendant’s allegedrefusal to submit to a chemical test demonstrated (his/her) feelings of guilt as to the charged crime.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the defendant’s alleged flight.
If you [all] find the above preliminary fact to exist, then you [may] [must] consider the defendant’s alleged refusal to submit to a chemical test in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b:
You may not consider the defendant’s alleged refusal to submit to a chemical test for any purpose unless you first determine that the refusal to submit to a chemical test demonstrates a consciousness of guilt as to the charged crime.
Points and Authorities
See FORECITE F 372.1 Inst 3.
F 2130.1 Inst 4 Refusal After Accusation: Knowledge Of Accusation As Preliminary Fact
*Add to CC 2130 when appropriate:
Alternative a:
Alternative a [Preliminary Fact: CALCRIM 375, 1191, 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that you should consider the defendant’s [alleged] refusal to submit to a chemical test after being accused of committing the crime.
However, you must not consider any evidence for any purpose unless the prosecution has first proved the following preliminary fact[s] by a preponderance of the evidence:
That the defendant knew (he/she) had been accused of committing the crime.
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist you must [disregard the defendant’s [alleged] refusal to submit to a chemical test, for all purposes] [not consider the alleged refusal to submit to a chemical test against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the [alleged] refusal to submit to a chemical test [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b:
You may not consider any allegedrefusal to submit to a chemical test of the defendant after [he][she] is accused of the crime unless you first determine that the defendant knew [he][she] was accused of the crime.
Points & Authorities
See FORECITE F 372.1 Inst 4.
F 2130.1 Inst 5 Refusal Must Be Willful
*Modify CC 2130, paragraph 2, sentence 1, as follows [added language is underlined]:
If the defendant willfully refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Refusal Must Be Willful—An inference of a consciousness of guilt does not logically follow from refusal to submit to testing unless the refusal was willful. (See FORECITE F 362.1 Inst 2; FORECITE F 371(A-1) Inst 3; cf., CC 2131, Element 3 [willful refusal required for refusal enhancement].)
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2130.2 Refusal: Limiting Instructions
F 2130.2 Inst 1 Defendant’s Refusal May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt”—Not That Defendant Was “Aware Of His Or Her Guilt”
*Modify CC 2130, paragraph 2, sentence 1, as follows [added language is underlined; deleted language is stricken]:
If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt [thought (he/she) did something wrong] [had feelings of guilt].
Points and Authorities
See FORECITE F 371(A-2) Inst 1.
F 2130.2 Inst 2 Refusal: Inapplicable To Nature Or Degree Of Guilt
*Add to CC 2130:
The defendant’s consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had committed a crime. Consciousness of guilt may not be considered [in determining the degree of defendant’s guilt] [or in determining which of the charged offenses the defendant committed].
Points and Authorities
See FORECITE F 371(A-2) Inst 2; see also FORECITE F 376 Inst 2.
F 2130.2 Inst 3Refusal: Limitation When Not Applicable To All Charged Offenses
*Add to end of CC 2130 when appropriate:
Evidence has been received that the defendantrefused to submit to a chemical test. At the time it was admitted you were admonished that this evidence may only be considered, if at all, in deciding Count _____. You are again instructed that you must not, in any manner, consider this evidence as to Count _____.
Points and Authorities
See FORECITE F 372.2 Inst 3.
F 2130.2 Inst 4 Refusal: Limitation To Applicable Co-Defendant
See FORECITE F 372.2 Inst 4.
F 2130.3 Refusal: Cautionary Instructions
F 2130.3 Inst 1 Defendant’s Refusal: Prosecution Must Prove Every Essential Fact
*Add at end of CC 372:
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
[Source: CALCRIM 376, paragraph 4.]
Points and Authorities
See FORECITE F 371(A-3) Inst 1.
F 2130.3 Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
*Modify last sentence of CJ 2.52 as follows [added language is underlined; deleted language is stricken]:
However, evidence that the defendant refused to submit to such a test by itself or in combination with [other alleged consciousness of guilt evidence] [the alleged ________ <insert other specific consciousness of guilt evidence> is insufficient to cannot prove guilt by itself.
Points and Authorities
See FORECITE F 371(A-3) Inst 2.
CALJIC NOTE: See FORECITE F 2.52l.
F 2130.3 Inst 3Refusal: Probative Value Reduced By Passage Of Time
*Add to CC 2130:
The more remote in time the allegedrefusal to submit to a chemical test is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.
Points and Authorities
See FORECITE F 372.3 Inst 3.
F 2130.3 Inst 4 Refusal: “Feelings Of Guilt” Do Not Reflect Actual Guilt
*Replace CC 2130 with the following:
Alternative a:
At most,refusal to submit to a chemical test may provide the basis for an inference that the defendant had feelings of guilt. However, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt.
Alternative b:
Intentional refusal to submit to a chemical test by a defendant after he is suspected of the crime [for] which he is now on trial, may be considered by you in light of all the other evidence in the case. The burden is upon the government to prove intentional refusal to submit to a chemical test. Intentional refusal to submit to a chemical test after a defendant is accused of a crime is not alone sufficient to conclude that he is guilty. Refusal to submit to a chemical test does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But refusal to submit to a chemical test may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of the evidence of refusal to submit to a chemical test, you should consider that there may be reasons for the defendant’s actions that are fully consistent with innocence.
It is up to you as members of the jury to determine whether or not evidence of intentionalrefusal to submit to a chemical test shows a consciousness of guilt and the weight or significance to be attached to any such evidence.
Points and Authorities
See FORECITE F 372.3 Inst 4.
F 2130.3 Inst 5 Intent To Avoid Arrest Does Not Necessarily Reflect Consciousness Of Guilt—Alternative Explanations: E.g., Defendant Didn’t Trust Or Understand The Test
*Add to CC 2130:
Alternative a [CC 3400 Format]:
The people must prove that the defendant committed the charged offense. The defendant contends (he/she) did not commit the offense and that (he/she) refused to submit to a chemical test due to a [fear or distrust of the police] [lacking of understanding of the test] [_______________ <other>]. However, defendant does not need to prove (his/her) reasons for refusing to submit to a chemical test.
If you have a reasonable doubt about whether the defendant ______________, you must find (him/her) not guilty.
Alternative b [CC 350 Format: Defense Evidence Presented]:
You have heard evidence that the defendantrefused to submit to a chemical test. Consider that evidence along with all the other evidence in attempting to decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless the prosecution has proven each fact essential to the conclusion that the defendant is guilty of that crime.
Points and Authorities
See FORECITE F 372.3 Inst 5.
F 2130.3 Inst 6 Refusal: Alternative Explanations
*Replace CC 2130 with the following:
Intentional refusal to take a sobriety test by a defendant after he is suspected of the crime [for] which he is now on trial may be considered by you in light of all the other evidence in the case. The burden is upon the government to prove intentional refusal. Intentional refusal after a defendant is accused of a crime is not alone sufficient to conclude that he is guilty. Refusal to take a sobriety test does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But refusal to take a sobriety test may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of the evidence of refusal to take a sobriety test, you should consider that there may be reasons for the defendant’s actions that are fully consistent with innocence.
It is up to you as members of the jury to determine whether or not evidence of intentional refusal to take a sobriety test shows a consciousness of guilt and the weight or significance to be attached to any such evidence.
Points and Authorities
See FORECITE F 372.3 Inst 5.
F 2130.4 Refusal: Reverse Instructions
F 2130.4 Inst 1Reverse Instruction When Defendant Agrees To Testing
*Modify CC 2130, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
If the defendant refused to submitted to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt believes (he/she) had done nothing wrong. If you conclude that the defendant refused to submitted to such a test, it is up to you to decide the meaning and importance of the refusal submission. However, Evidence that the defendant refused to submitted to such a test cannot prove guilt by itself may alone leave you with a reasonable doubt as to the defendant’s guilt.
Points and Authorities
See FORECITE F 372.4 Inst 1 (a-d).
