SERIES 2100 VEHICLE OFFENSES
F 2130 NOTES
TABLE OF CONTENTS
F 2130 Note 1 Refusal—Consciousness Of Guilt—CALCRIM Cross-References And Research Notes
F 2130 Note 2 Refusal: Defense Objection Precludes Instruction Which Benefits Defendant
F 2130 Note 3 Refusal Insufficient To Prove Missing Elements
F 2130 Note 4 Refusal: Improper Prosecution Pinpoint Instruction
F 2130 Note 5 Refusal Instruction As Improper Comment On The Evidence
F 2130 Note 6 Refusal To Take The Sobriety Test: Violation Of 5th Amendment
F 2130 Note 7 Duress As Defense To Drunk Driving
F 2130 Note 8 Refusal Of Sobriety Test: No Obligation To Take Second Test
F 2130 Note 9 DUI: Suspension Of License (VC 13353) For Refusing Test (VC 23612)
F 2130 Note 10 Subsequent Consent To Sobriety Test As Affecting Initial Refusal
F 2130 Note 11 Challenge To Refusal Instruction As Duplicative Of Circumstantial Evidence Instruction
F 2130 Note 12 Request For Identification Of Person Drawing Blood Does Not Violate Implied Consent Law
Return to Series 2100 Table of Contents.
F 2130 Note 1 Refusal—Consciousness Of Guilt—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 362, F 370, F 372.
CALCRIM 2100 [Driving Under The Influence Causing Injury]
CALCRIM 2101 [Driving With 0.08 Percent Blood Alcohol Causing Injury]
CALCRIM 2110 [Driving Under The Influence]
CALCRIM 2111 [Driving With 0.08 Percent Blood Alcohol]
CALCRIM 2112 [Driving While Addicted To A Drug]
CALCRIM 2113 [Driving With 0.05 Percent Blood Alcohol When Under 21]
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]
CALCRIM 2131 [Refusal—Enhancement]
Research Notes:
See CLARAWEB Forum, Vehicle Offenses—Series 2100.
F 2130 Note 2 Refusal: Defense Objection Precludes Instruction Which Benefits Defendant
See FORECITE F 362 Note 7.
F 2130 Note 3 Refusal Insufficient To Prove Missing Elements
See FORECITE F 362 Note 9.
F 2130 Note 4 Refusal: Improper Prosecution Pinpoint Instruction
See FORECITE F 362 Note 6.
F 2130 Note 5 Refusal Instruction As Improper Comment On The Evidence
See FORECITE F 362 Note 10.
F 2130 Note 6 Refusal To Take The Sobriety Test: Violation Of 5th Amendment
CALCRIM 2130 invites the jury to consider the defendant’s refusal to take a sobriety test to prove that the defendant was “aware of his guilt.” However, it has been recognized that evidence (and instruction) upon the defendant’s refusal to take the sobriety test impacts the defendant’s privilege against self-incrimination. In Opinion of the Justices to Senate (1992) 591 NE2d 1073, it was reasoned that “[i]n the ordinary case a prosecutor would seek to introduce refusal evidence to show, and would argue if permitted, that a defendant’s refusal is the equivalent of his statement, ‘I have had so much to drink that I know or at least suspect that I am unable to pass the test.’ [Citation.]” (591 NE2d at 1077.) The justices concluded that refusal evidence constitutes evidence of an accused’s thought process and therefore is testimonial in nature. (Id.; City of Seattle v. Stalsbroten (1998) 957 P2d 260 [98 Wash.App 226]) [driver’s refusal to perform a voluntary field sobriety test is testimonial in nature and protected by 5th Amendment].) Moreover, to compel the accused to choose between taking the sobriety test and perhaps producing potentially incriminating real evidence, and refusing to take it and have adverse testimonial evidence used against him at trial, would unconstitutionally compel an accused to furnish evidence against himself or herself. (See also Commonwealth v. Zevitas (1994) 639 NE2d 1076 [418 Mass 677]; but see People v. Roberts (1992) 2 C4th 271, 310-11 [holding that evidence and instruction on refusal to take blood test does not impact 5th Amendment]; South Dakota v. Neville (1983) 459 US 553, 564 [74 LEd2d 748; 103 SCt 916] [“A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the 5th Amendment privilege against self-incrimination”].)
RESEARCH NOTE: Annotation, Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 ALR4th 1112, 1138-39, 1144-45; see also Opinion of Justices to Senate (Ma 1992) 591 NE2d 1073, 1202-06 [discussing conflict among the jurisdictions on the issue].)
(See also FORECITE F 2.06 n4.)
CALJIC NOTE: See FORECITE F 16.835 n2.
F 2130 Note 7 Duress As Defense To Drunk Driving
(See FORECITE F 4.40 n8.)
CALJIC NOTE: See FORECITE F 16.835 n4.
F 2130 Note 8 Refusal Of Sobriety Test: No Obligation To Take Second Test
It is error to give CJ 16.835 (now CC 2130) (Refusal Of A Chemical Test) where the person has already taken a PAS test. For briefing on this issue, see Brief Bank # B-957.
CALJIC NOTE: See FORECITE F 16.835 n5.
F 2130 Note 9 DUI: Suspension Of License (VC 13353) For Refusing Test (VC 23612)
See FORECITE F 2100 n21.
CALJIC NOTE: See FORECITE F 12.60 n21.
F 2130 Note 10 Subsequent Consent To Sobriety Test As Affecting Initial Refusal
The question of whether a motorist’s initial refusal to be tested may be cured by the motorist’s subsequent consent was addressed in Leviner v. S. Carolina Dept. Of Hwys. (1993) 438 SE2d 246. Although Leviner held that the subsequent consent should not cure an initial refusal, other courts have taken the position that under certain circumstances, the motorist may ask for a test and cure the initial refusal unless the delay would materially affect the test result. (See Annotation, Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 ALR 5th 459 and Later Case Service.)
CALJIC NOTE: See FORECITE F 16.835 n3.
F 2130 Note 11 Challenge To Refusal Instruction As Duplicative Of Circumstantial Evidence Instruction
See FORECITE PRACTICE GUIDE PG VII(C)(9.1).
F 2130 Note 12 Request For Identification Of Person Drawing Blood Does Not Violate Implied Consent Law
See Ross v. DMV (1990) 219 CA3d 398, 402-03.
