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.
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
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].)
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.
On request, give CALCRIM No. 2241, Driver and Driving Deﬁned.
CALCRIM No. 2111, Driving With 0.08 Percent Blood Alcohol.
CALCRIM No. 2125, Driving Under the Inﬂuence or With 0.08 Percent Blood
Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Inﬂuence or With 0.08 Percent Blood
Alcohol: Prior Convictions—Bifurcated Trial.
• Elements Veh. Code, § 23152(a).
•Alcoholic Beverage Deﬁned Veh. Code, § 109; Bus. & Prof. Code, § 23004.
• Drug Deﬁned Veh. Code, § 312.
VEHICLE OFFENSES CALCRIM No. 2110