CALCRIM No. 2101. Driving With 0.08 Percent Blood Alcohol Causing Injury (Veh. Code, § 23153(b))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2101.Driving With 0.08 Percent Blood Alcohol Causing Injury
(Veh. Code, § 23153(b))
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 [in violation of Vehicle Code section 23153(b)].
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);
AND
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) 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
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: (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
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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.]
New January 2006; Revised August 2006, April 2008, August 2015, 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. Oyass (1985) 173 Cal.App.3d 663, 669 [219
VEHICLE OFFENSES CALCRIM No. 2101
127
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.
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 no substantial
evidence that the defendant’s blood alcohol level was at or above 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
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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. 2100, Driving a Vehicle or Operating a Vessel Under the Influence
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(b); Burg v. Municipal Court (1983) 35 Cal. 3d
257, 265-266 [198 Cal. Rptr. 145, 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(2); Restatement Second of Torts,
§ 282.
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
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• 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].
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].
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2111, Driving With 0.08 Percent
Blood Alcohol and CALCRIM No. 2100, Driving a Vehicle or Operating a Vessel
Under the Influence Causing Injury.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272-277.
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[1] (Matthew Bender).
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