SERIES 2200 VEHICLE OFFENSES
F 2241 Driver And Driving Defined (VC 305)
TABLE OF CONTENTS
F 2241.1 Titles And Identification Of Parties
F 2241.1 Inst 1 Driver And Driving Defined—Title
F 2241.1 Inst 2 Identification Of Prosecution And Defendant
F 2241.2 Driver And Driving Defined—Tailoring To Facts: Persons, Places, Things And Theories
F 2241.2 Inst 1 Deletion Of Argumentative Language
F 2241.2 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 2241.2 Inst 3 Definition Of Driving (VC 23153(a))
F 2241.3 Driver And Driving Defined—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2241.4 Driver And Driving Defined—Burden Of Proof Issues
F 2241.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2241.5 Driver And Driving Defined—Elements And Definitions [Reserved]
F 2241.6 Driver And Driving Defined—Defense Theories
F 2241.6 Inst 1 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 2241.7 Driver And Driving Defined—Preliminary Fact Issues [Reserved]
F 2241.8 Driver And Driving Defined—Unanimity/Duplicity/Multiplicity [Reserved]
F 2241.9 Driver And Driving Defined—Lesser Offense Issues [Reserved]
Return to Series 2200 Table of Contents.
F 2241.1 Titles And Identification Of Parties
F 2241.1 Inst 1 Driver And Driving Defined—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2241.1 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 2241.2Driver And Driving Defined—Tailoring To Facts: Persons, Places, Things And Theories
F 2241.2 Inst 1 Deletion Of Argumentative Language
*Modify CC 2241, paragraph 2, as follows [deleted language is stricken]:
[A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2241.2 Inst 2.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 2241.2 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
See FORECITE F 2241.6 Inst 1.
F 2241.2 Inst 3 Definition Of Driving (VC 23153(a))
*Replace CC 2241 with the following:
Driving is the act of physically controlling a moving vehicle whether or not the engine is running. If there is no movement of the vehicle, then the defendant was not driving, even if [he] [she] started the engine.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of Driving—A driver is defined as set forth above by VC 305. In People v. Hernandez (1990) 219 CA3d 1177, 1183-84, the court discussed the question of what constitutes driving in the specific context of whether or not the engine needs to be running. In Hernandez, the defendant’s engine had stalled and he was controlling the vehicle as it coasted. The Hernandez court concluded that he was controlling the vehicle and, hence, driving it within the meaning of VC 23153(a). (Hernandez, at 1183-84.) On the other hand, even if the engine has been started, there is no driving unless there is movement of the vehicle. (Mercer v. DMV (1991) 53 C3d 753, 763-69 [disapproving dictum in Hernandez]; see also Music v. DMV (1990) 221 CA3d 841, 848-51.)
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: Steering the car from the passenger seat constitutes driving. (See In re Queen T. (1993) 14 CA4th 1143.)
RESEARCH NOTES: See Annotation, What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 ALR3d 7 and Later Case Service.
CALJIC NOTE: See FORECITE F 12.60b.
F 2241.3 Driver And Driving Defined—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 2241.4 Driver And Driving Defined—Burden Of Proof Issues
F 2241.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2241.5 Driver And Driving Defined—Elements And Definitions [Reserved]
F 2241.6 Driver And Driving Defined—Defense Theories
F 2241.6 Inst 1 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 2241, paragraph 2:
Alternative a [fact not disputed]:
However, the fact that any movement of the vehicle was slight is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_______________<insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not any movement of the vehicle was slight is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_____________ <insert specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2241.7 Driver And Driving Defined—Preliminary Fact Issues [Reserved]
F 2241.8 Driver And Driving Defined—Unanimity/Duplicity/Multiplicity[Reserved]
F 2241.9 Driver And Driving Defined—Lesser Offense Issues [Reserved]
