2101. Driving With 0.08 Percent Blood Alcohol Causing Injury
The defendant is charged [in Count ______] with causing injury to another person while driving with a blood alcohol level of 0.08 percent or more.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant's blood alcohol level was 0.08 percent or more by weight;
3. When the defendant was driving with that blood alcohol level, (he/she) also (committed an illegal act/ [or] neglected to perform a legal duty);
4. The defendant's (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person.
[If the People have proved beyond a reasonable doubt that a sample of the defendant's (blood/breath/urine) was taken within three hours of the defendant's [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant's blood alcohol level was 0.08 percent or more 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 Health Services.]
[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: (the duty to exercise ordinary care at all times and to maintain proper control of the vehicle/ <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 probable, consider all of 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.]
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. Oyass (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 [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 a sample of" explains a rebuttable presumption created by statute. (See Veh. Code, § 23152(b); 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. In addition, it is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (Evid. Code, § 640.) If any evidence has been introduced to support the opposite factual finding, then the jury "shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with "If the People have proved beyond a reasonable doubt that a sample of" if there is evidence that the defendant's blood alcohol level was below 0.08 percent at the time of the test.
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 Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who drew blood not authorized under title 17].)
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. 2110, Driving Under the Influence. If the court grants a bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With 0.08 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 [78 Cal.Rptr.2d 809].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
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.
CALCRIM No. 2100, Driving Under the Influence Causing Injury.
CALCRIM No. 595, Vehicular Manslaughter: Speeding Laws Defined.
Elements. Veh. Code, § 23153(b); Burg v. Municipal Court (1983) 35 Cal.3d 257, 265-266 [198 Cal.Rptr. 149, 673 P.2d 732].
Partition Ratio. Veh. Code, § 23152(b); People v. Bransford (1994) 8 Cal.4th 885, 890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
Presumptions. Veh. Code, § 23153(b); Evid. Code, § 607; People v. Milham (1984) 159 Cal.App.3d 487, 503-505 [205 Cal.Rptr. 688].
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.
Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].
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].
Statute Constitutional. Burg v. Municipal Court (1983) 35 Cal.3d 257, 273 [198 Cal.Rptr. 145, 673 P.2d 732].
Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 205-210.
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).
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].
(New January 2006)