Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Vehicle Offenses CALCRIM No. 2102. Driving With 0.04 Percent Blood Alcohol Causing Injury With a Passenger for Hire (Veh. Code, § 23153(e))

CALCRIM No. 2102. Driving With 0.04 Percent Blood Alcohol Causing Injury With a Passenger for Hire (Veh. Code, § 23153(e))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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2102.Driving With 0.04 Percent Blood Alcohol Causing Injury

With a Passenger for Hire (Veh. Code, § 23153(e))

The defendant is charged [in Count ] with causing injury to

another person while driving with a blood-alcohol level of 0.04 percent

or more [in violation of Vehicle Code section 23153(e)].

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 0.04

percent or more by weight;

3. When (he/she) drove with that blood-alcohol level, (he/she) also

(committed an illegal act/ [or] neglected to perform a legal duty);

4. When (he/she) drove, there was a passenger for hire in the

vehicle;

AND

5. The defendant’s (illegal act/ [or] failure to perform a legal duty)

caused bodily injury to another person.

A person is a passenger for hire when the person or someone else pays,

or is expected to pay, for the ride, the payment is or will be with money

or something else of value, and the payment is made to, or expected to

be made to, the owner, operator, agent or any other person with an

interest in the vehicle.

[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 0.04 percent or more, you may, but are

not required to, conclude that the defendant’s blood-alcohol level was

0.04 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].]

135

[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).]

[You must all agree on which (act the defendant committed/ [or] duty

the defendant failed to perform).]

[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 March 2018, effective July 2018; Revised 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].)

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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, § 23153(e); 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 0.04 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

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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].)

Do not give this instruction if the court has bifurcated the trial. Instead, give

CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent

Blood Alcohol: Prior Convictions - Bifurcated Trial. See the Bench Notes to

CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive

discussion of bifurcation. If 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.

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(e); Burg v. Municipal Court (1983) 35 Cal.3d

257, 265-266 [198 Cal.Rptr. 145, 673 P.2d 732].

• Partition Ratio. Veh. Code, § 23152; People v. Bransford (1994) 8 Cal.4th 885,

890 [35 Cal.Rptr.2d 613, 884 P.2d 70].

• Presumptions. Veh. Code, § 23153(e); 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].

• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235

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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

• Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire. Veh. Code,

§ 23152(e).

RELATED ISSUES

See the Related Issues section in CALCRIM No. 2111, Driving a Vehicle or

Operating a Vessel Under the Influence Causing Injury (Veh. Code, § 23153)(a), (f),

(g) and CALCRIM No. 2100, Driving With 0.08 Percent Blood Alcohol (Veh. Code,

§ 23152(b).

2103-2109. Reserved for Future Use

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Page last reviewed May 2024