CALCRIM No. 2100. Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (Veh. Code, § 23153(a), (f), (g))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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A. DUI
(i) Causing Injury
2100.Driving a Vehicle or Operating a Vessel Under the Influence
Causing Injury (Veh. Code, § 23153(a), (f), (g))
The defendant is charged [in Count ] with causing injury to
another person while (driving a vehicle/operating a vessel) under the
[combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an
alcoholic beverage and a drug) [in violation of Vehicle Code section
23153(a)/(f)/(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (drove a vehicle/operated a vessel);
2. When (he/she) (drove a vehicle/operated a vessel), the defendant
was under the [combined] influence of (an alcoholic beverage/ [or]
a drug/ [or] an alcoholic beverage and a drug);
3. While (driving a vehicle/operating a vessel) under the influence,
the defendant also (committed an illegal act/ [or] neglected to
perform a legal duty);
AND
4. The defendant’s (illegal act/ [or] failure to perform a legal duty)
caused bodily injury to another person.
A person is under the influence if, as a result of (drinking [or consuming]
an alcoholic beverage/ [and/or] taking a drug), his or her mental or
physical abilities are so impaired that he or she is no longer able to
(drive a vehicle/operate a vessel) with the caution of a sober person,
using ordinary care, under similar circumstances.
[An alcoholic beverage is a liquid or solid material intended to be
consumed that contains ethanol. Ethanol is also known as ethyl alcohol,
drinking alcohol, or alcohol. [An alcoholic beverage includes
<insert type[s] of beverage[s] from Veh. Code, § 109 or Bus. & Prof. Code,
§ 23004, e.g., wine, beer>.]]
[A drug is a substance or combination of substances, other than alcohol,
that could so affect the nervous system, brain, or muscles of a person
that it would appreciably impair his or her ability to (drive a vehicle/
operate a vessel) as an ordinarily cautious person, in full possession of
his or her faculties and using reasonable care, would (drive a vehicle/
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operate a vessel) under similar circumstances.]
[If the People have proved beyond a reasonable doubt that the
defendant’s blood alcohol level was 0.08 percent or more at the time of
the chemical analysis, you may, but are not required to, conclude that
the defendant was under the influence of an alcoholic beverage at the
time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[The People allege that the defendant committed the following illegal
act[s]: <list name[s] of offense[s]>.
To decide whether the defendant committed <list name[s] of
offense[s]>, please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].]
[The People [also] allege that the defendant failed to perform the
following legal (duty/duties) while (driving the vehicle/operating the
vessel): (the duty to exercise ordinary care at all times and to maintain
proper control of the (vehicle/vessel)/ <insert other duty or
duties alleged>).]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant (committed [at least] one illegal
act/[or] failed to perform [at least] one duty).
<Alternative A - unanimity required; see Bench Notes>
[You must all agree on which (act the defendant committed/ [or] duty
the defendant failed to perform).]
<Alternative B - unanimity not required; see Bench Notes>
[But you do not have to all agree on which (act the defendant
committed/ [or] duty the defendant failed to perform).]]
[Using ordinary care means using reasonable care to prevent reasonably
foreseeable harm to someone else. A person fails to exercise ordinary
care if he or she (does something that a reasonably careful person would
not do in the same situation/ [or] fails to do something that a reasonably
careful person would do in the same situation).]
[An act causes bodily injury to another person if the injury is the direct,
natural, and probable consequence of the act and the injury would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
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probable, consider all the circumstances established by the evidence.]
[There may be more than one cause of injury. An act causes bodily
injury to another person only if it is a substantial factor in causing the
injury. A substantial factor is more than a trivial or remote factor.
However, it need not be the only factor that causes the injury.]
[It is not a defense that the defendant was legally entitled to use the
drug.]
[If the defendant was under the influence of (an alcoholic beverage/ [and/
or] a drug), then it is not a defense that something else also impaired
(his/her) ability to (drive a vehicle/operate a vessel).]
New January 2006; Revised June 2007, April 2008, December 2008, August 2015,
September 2017, March 2018, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under element 3 that the defendant committed an act
forbidden by law, the court has a sua sponte duty to specify the predicate offense
alleged and to instruct on the elements of that offense. (People v. Minor (1994) 28
Cal.App.4th 431, 438-439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].)
If the prosecution alleges under element 3 that the defendant neglected to perform a
duty imposed by law, the court has a sua sponte duty to instruct on the duty
allegedly neglected. (See People v. Minor, supra, 28 Cal.App.4th at pp. 438-439.) If
the prosecution alleges that the defendant neglected the general duty of every driver
to exercise ordinary care (see People v. Oyaas (1985) 173 Cal.App.3d 663, 669 [219
Cal.Rptr. 243]), the court should give the bracketed definition of “ordinary care.”
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of injury, the court
should give the first bracketed paragraph on causation, which includes the “direct,
natural, and probable” language. If there is evidence of multiple causes of injury, the
court should also give the second bracketed paragraph on causation, which includes
the “substantial factor” definition. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746-747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
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[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586-587 [249
Cal.Rptr. 906] [unanimity instruction not required, failure to give harmless error if
was required].) If the court concludes that a unanimity instruction is appropriate,
give the unanimity alternative A. If the court concludes that unanimity is not
required, give the unanimity alternative B.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” explains
a rebuttable presumption created by statute. (See Veh. Code, § 23610; Evid. Code,
§§ 600-607.) The California Supreme Court has held that a jury instruction phrased
as a rebuttable presumption in a criminal case creates an unconstitutional mandatory
presumption. (People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501,
658 P.2d 1302].) In accordance with Roder, the instructions have been written as
permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that the defendant’s blood alcohol level was
0.08 percent” if there is no substantial evidence that the defendant’s blood alcohol
level was at or above 0.08 percent at the time of the test. In addition, if the test falls
within the range in which no presumption applies, 0.05 percent to just below 0.08
percent, do not give this bracketed sentence. (People v. Wood (1989) 207
Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider
whether there is sufficient evidence to establish that the test result exceeds the
margin of error before giving this instruction for test results of 0.08 percent.
(Compare People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4-5 [188 Cal.Rptr.
366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.
378].)
The statute also creates a rebuttable presumption that the defendant was not under
the influence if his or her blood alcohol level was less than 0.05 percent. (People v.
Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the
facts of the case, the defendant may be entitled to a pinpoint instruction on this
presumption. It is not error to refuse an instruction on this presumption if the
prosecution’s theory is that the defendant was under the combined influence of
drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32
Cal.Rptr.2d 442].)
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
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Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
Give the bracketed sentence stating that “it is not a defense that something else also
impaired (his/her) ability to drive” if there is evidence of an additional source of
impairment such as an epileptic seizure, inattention, or falling asleep.
If the defendant is charged with one or more prior convictions for driving under the
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77-78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60
Cal.App.4th 1327, 1334-1336 [71 Cal.Rptr.2d 41]; People v. Weathington,supra,
231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not
grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or
With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions. If the court grants a
bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With
0.08 or 0.04 Percent Blood Alcohol: Prior Convictions - Bifurcated Trial. If the
defendant stipulates to the truth of the convictions, the prior convictions should not
be disclosed to the jury unless the court admits them as otherwise relevant. (See
People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Defenses - Instructional Duty
On request, if supported by the evidence, the court must instruct on the “imminent
peril/sudden emergency” doctrine. (People v. Boulware (1940) 41 Cal.App.2d 268,
269-270 [106 P.2d 436].) The court may use the bracketed instruction on sudden
emergency in CALCRIM No. 590, Gross Vehicular Manslaughter While Intoxicated.
Related Instructions
CALCRIM No. 2101, Driving With 0.08 Percent Blood Alcohol Causing Injury.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions - Bifurcated Trial.
CALCRIM No. 595, Vehicular Manslaughter: Speeding Laws Defined.
AUTHORITY
• Elements. Veh. Code, § 23153(a), (f), (g); People v. Minor (1994) 28
Cal.App.4th 431, 438 [33 Cal.Rptr.2d 641].
• Alcoholic Beverage Defined. Veh. Code, § 109, Bus. & Prof. Code, § 23004.
• Drug Defined. Veh. Code, § 312.
• Presumptions. Veh. Code, § 23610; Evid. Code, § 607; People v. Milham
(1984) 159 Cal.App.3d 487, 503-505 [205 Cal.Rptr. 688].
• Under the Influence Defined. People v. Schoonover (1970) 5 Cal.App.3d 101,
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105-107 [85 Cal.Rptr. 69]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665-666 [49 Cal.Rptr.2d 710].
• Must Instruct on Elements of Predicate Offense. People v. Minor (1994) 28
Cal.App.4th 431, 438-439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
• Negligence - Ordinary Care. Pen. Code, § 7, subd. 2; Restatement Second of
Torts, § 282; People v. Oyaas (1985) 173 Cal.App.3d 663, 669 [219 Cal.Rptr.
243] [ordinary negligence standard applies to driving under the influence causing
injury].
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Legal Entitlement to Use Drug Not a Defense. Veh. Code, § 23630.
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586-587 [249 Cal.Rptr. 906].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
• Misdemeanor Driving Under the Influence or With 0.08 Percent. Veh. Code,
§ 23152(a) & (b); People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269
Cal.Rptr. 250].
• Driving Under the Influence Causing Injury is not a lesser included offense of
vehicular manslaughter without gross negligence. People v. Binkerd (2007) 155
Cal.App.4th 1143, 1148-1149 [66 Cal.Rptr.3d 675].
• Violations of Vehicle Code section 23153(a), are not lesser included offenses of
Vehicle Code section 23153(f) [now 23153(g)]. People v. Cady (2016) 7
Cal.App.5th 134, 145-146 [212 Cal.Rptr.3d 319].
RELATED ISSUES
DUI Cannot Serve as Predicate Unlawful Act
“[T]he evidence must show an unlawful act or neglect of duty in addition to driving
under the influence.” (People v. Minor (1994) 28 Cal.App.4th 431, 438 [33
Cal.Rptr.2d 641] [italics in original]; People v. Oyaas (1985) 173 Cal.App.3d 663,
668 [219 Cal.Rptr. 243].)
Act Forbidden by Law
The term “ ‘any act forbidden by law’ . . . refers to acts forbidden by the Vehicle
Code . . . .” (People v. Clenney (1958) 165 Cal.App.2d 241, 253 [331 P.2d 696].)
The defendant must commit the act when driving the vehicle. (People v. Capetillo
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(1990) 220 Cal.App.3d 211, 217 [269 Cal.Rptr. 250] [violation of Veh. Code,
§ 10851 not sufficient because offense not committed “when” defendant was driving
the vehicle but by mere fact that defendant was driving the vehicle].)
Neglect of Duty Imposed by Law
“In proving the person neglected any duty imposed by law in driving the vehicle, it
is not necessary to prove that any specific section of [the Vehicle Code] was
violated.” (Veh. Code, § 23153(c); People v. Oyaas (1985) 173 Cal.App.3d 663, 669
[219 Cal.Rptr. 243].) “[The] neglect of duty element . . . is satisfied by evidence
which establishes that the defendant’s conduct amounts to no more than ordinary
negligence.” (People v. Oyaas,supra, 173 Cal.App.3d at p. 669.) “[T]he law
imposes on any driver [the duty] to exercise ordinary care at all times and to
maintain a proper control of his or her vehicle.” (Id. at p. 670.)
Multiple Victims to One Drunk Driving Accident
“In Wilkoff v. Superior Court [(1985) 38 Cal.3d 345, 352 [211 Cal.Rptr. 742, 696
P.2d 134]] we held that a defendant cannot be charged with multiple counts of
felony drunk driving under Vehicle Code section 23153, subdivision (a), where
injuries to several people result from one act of drunk driving.” (People v.
McFarland (1989) 47 Cal.3d 798, 802 [254 Cal.Rptr. 331, 765 P.2d 493].) However,
when “a defendant commits vehicular manslaughter with gross negligence[,] . . . he
may properly be punished for [both the vehicular manslaughter and] injury to a
separate individual that results from the same incident.” (Id. at p. 804.) The
prosecution may also charge an enhancement for multiple victims under Vehicle
Code section 23558.
See also the Related Issues section in CALCRIM No. 2110, Driving Under the
Influence.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272-277.
2 Witkin, California Evidence (5th ed. 2012) Demonstrative, Experimental, and
Scientific Evidence, § 56.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.36 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02 (Matthew Bender).
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