SERIES 2100 VEHICLE OFFENSES
F 2131 Refusal—Enhancement (VC 23577 & VC 23612)
TABLE OF CONTENTS
F 2131.1 Titles And Identification Of Parties
F 2131.1 Inst 1 Refusal—Enhancement—Title
F 2131.1 Inst 2 Identification Of Prosecution And Defendant
F 2131.2 Refusal—Enhancement—Tailoring To Facts: Persons, Places, Things And Theories
F 2131.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 2131.3 Refusal—Enhancement—Language That Is Argumentative, Confusing, Etc.
F 2131.3 Inst 1 Willfully: Argumentative
F 2131.3 Inst 2 Modification Of Coercive Language That Jurors “Must Decide” The Enhancement
F 2131.4 Refusal—Enhancement—Burden Of Proof Issues
F 2131.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2131.5 Refusal—Enhancement—Elements And Definitions
F 2131.5 Inst 1 Willfully: Separate Enumeration
F 2131.5 Inst 2 Willfully: Knowledge
F 2131.5 Inst 3 “Chemical Test”—Tailor To Theory
F 2131.5 Inst 4 Lawfulness Of Arrest And Probable Cause As Required Element
F 2131.6 Refusal—Enhancement—Defense Theories
F 2131.6 Inst 1 Willfully: Balance
F 2131.6 Inst 2 Pinpoint Instruction: Failure To Understand Duty To Submit To Testing Or Consequences Of Refusal
F 2131.7 Refusal—Enhancement—Preliminary Fact Issues [Reserved]
F 2131.8 Refusal—Enhancement—Unanimity/Duplicity/Multiplicity [Reserved]
F 2131.9 Refusal—Enhancement—Lesser Offense Issues [Reserved]
Return to Series 2100 Table of Contents.
F 2131.1 Titles And Identification Of Parties
F 2131.1 Inst 1 Refusal—Enhancement—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2131.1 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 2131.2 Refusal—Enhancement—Tailoring To Facts: Persons, Places, Things And Theories
F 2131.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 2131, Elements and paragraph 3, as follows [added language is underlined; deleted language is stricken]:
1. A peace officer _______________ <name of peace officer> asked the defendant to submit to a chemical test to determine (his/her) blood alcohol content/[or] whether (he/she) had consumed a drug);
2. _______________ <name of peace officer> was a peace officer;
2 3. The peace officer _______________ <name of peace officer> fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test;
AND
3 4. The defendant willfully refused to (submit to a test/ [or] to complete the test).
To have fully advised the defendant, the peace officer _______________ <name of peace officer> must have told (him/her) all of the following information:
…
Points and Authorities
Tailor To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 2131.3 Refusal—Enhancement—Language That Is Argumentative, Confusing, Etc.
F 2131.3 Inst 1 Willfully: Argumentative
Re: CC 2131, paragraph 5, see FORECITE F 820.3 Inst 1.
F 2131.3 Inst 2 Modification Of Coercive Language That Jurors “Must Decide” The Enhancement
*Modify CC 2131, paragraph 1, as follows [added language is underlined]:
If you find the defendant guilty of (causing injury while driving under the influence/ [or] [the lesser offense of] driving under the influence), you must then try to decide, if you can, whether …
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 2131.4 Refusal—Enhancement—Burden Of Proof Issues
F 2131.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2131.5 Refusal—Enhancement—Elements And Definitions
F 2131.5 Inst 1 Willfully: Separate Enumeration
*Modify CC 2131, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. The defendant willfully refused to (submit to a test/ [or] to complete the test);
AND
4. The defendant did so willfully.
Points and Authorities
See FORECITE F 840.5 Inst 3.
F 2131.5 Inst 2 Willfully: Knowledge
Re: CC 2131, paragraph 5, see FORECITE F 820.5 Inst 1.
F 2131.5 Inst 3 “Chemical Test”—Tailor To Theory
*Modify CC 2131, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. A peace officer asked the defendant to submit to a chemical [blood] [breath] [urine] test to determine ((his/her) blood alcohol content/[or] whether (he/she) had consumed a drug);
Points and Authorities
Tailor To Theory—See FORECITE F 400.2 Inst 1; compare CALJIC 17.28.2, Element 1; CJ 17.29.
F 2131.5 Inst 4 Lawfulness Of Arrest And Probable Cause As Required Element
*Add to CC 2131 as Element 4, as follows:
[4. The defendant was:
A. Lawfully arrested;
AND
B. The arrest was made by a peace officer having probable cause to believe the defendant was driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The Bench Notes to CALCRIM 2131 quotes VC 23612(a)(1)(C) as follows: “If there is a factual issue as to whether the defendant was lawfully arrested or whether the officer had reasonable cause to believe the defendant was under the influence, give bracketed element 4.”
However, the bracketed element 4 appears to have been omitted from the instruction.
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 2131.6 Refusal—Enhancement—Defense Theories
F 2131.6 Inst 1 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 2131.6 Inst 2 Pinpoint Instruction: Failure To Understand Duty To Submit To Testing Or Consequences Of Refusal
*Add to CC 2131 as follows:
The prosecution must prove beyond a reasonable doubt that the defendant’s refusal to submit to the testing was willful. The defendant contends that (his/her) refusal to do so was not willful because as a result of ______________ <e.g., head trauma>, (he/she) [didn’t understand the duty to submit to testing] [or] [the consequences of refusing to take the test]. The prosecution must prove either that:
1. The defendant understood his duty to submit and the consequences of refusal;
OR
2. (His/Her) failure to understand was caused by [impairment from voluntary alcohol use] [_______________ <other cause attributable to defendant’s volitional conduct e.g., refusal to listen to admonition >] as opposed to ______________ <e.g., head trauma>.
[Insert or cross-reference causation instructions if appropriate.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Failure To Understand Duty Or Consequences Of Refusal—See Hughey v. Department of Motor Vehicles (1991) 235 CA3d 752, 760; see also CC 2131, Related Issues.
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 2131.7 Refusal—Enhancement—Preliminary Fact Issues[Reserved]
F 2131.8 Refusal—Enhancement—Unanimity/Duplicity/Multiplicity[Reserved]
F 2131.9 Refusal—Enhancement—Lesser Offense Issues [Reserved]
