CALCRIM No. 2110. Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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(ii) Without Injury
2110.Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))
The defendant is charged [in Count ] with driving under the
[combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an
alcoholic beverage and a drug) [in violation of Vehicle Code section
23152(a)/(f)/(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was under the [combined]
influence of (an alcoholic beverage/ [or] a drug/ [or] an alcoholic
beverage and a drug).
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 with the caution of a sober person, using ordinary care, under
similar circumstances.
The manner in which a person drives is not enough by itself to establish
whether the person is or is not under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an alcoholic
beverage and a drug]. However, it is a factor to be considered, in light of
all the surrounding circumstances, in deciding whether the person was
under the influence.
[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 as an
ordinarily cautious person, in full possession of his or her faculties and
using reasonable care, would drive 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.]
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[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.]
[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.]
New January 2006; Revised June 2007, April 2008, August 2015, September 2017,
March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with a misdemeanor or a
felony based on prior convictions.
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].)
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
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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
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.
Related Instructions
CALCRIM No. 2111, Driving With 0.08 Percent Blood Alcohol.
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.
AUTHORITY
Elements. Veh. Code, § 23152(a), (f), (g).
Alcoholic Beverage Defined. Veh. Code, § 109; Bus. & Prof. Code, § 23004.
Drug Defined. Veh. Code, § 312.
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Driving. Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280
Cal.Rptr. 745, 809 P.2d 404].
Presumptions. Veh. Code, § 23610; Evid. Code, § 607; People v. Milham
(1984) 159 Cal.App.3d 487, 503-505 [205 Cal.Rptr. 688].
Mandatory Presumption Unconstitutional Unless Instructed as Permissive
Inference. People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501,
658 P.2d 1302].
Under the Influence Defined. People v. Schoonover (1970) 5 Cal.App.3d 101,
105-107 [85 Cal.Rptr. 69]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665-666 [49 Cal.Rptr.2d 710].
Manner of Driving. People v. Weathington (1991) 231 Cal.App.3d 69, 84 [282
Cal.Rptr. 170]; People v. McGrath (1928) 94 Cal.App. 520, 524 [271 P. 549].
Legal Entitlement to Use Drug Not a Defense. Veh. Code, § 23630.
Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
If the defendant is charged with felony driving under the influence based on prior
convictions, then the misdemeanor offense is a lesser included offense. The court
must provide the jury with a verdict form on which the jury will indicate if the prior
convictions have been proved. If the jury finds that the prior convictions have not
been proved, then the offense should be set at a misdemeanor.
Attempted Driving Under the Influence. Pen. Code, § 664; Veh. Code,
§ 23152(a); People v. Garcia (1989) 214 Cal.App.3d Supp. 1, 3-4 [262 Cal.Rptr.
915].
RELATED ISSUES
Driving
“[S]ection 23152 requires proof of volitional movement of a vehicle.” (Mercer v.
Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d
404].) However, the movement may be slight. (Padilla v. Meese (1986) 184
Cal.App.3d 1022, 1029 [229 Cal.Rptr. 310]; Henslee v. Dept. of Motor Vehicles
(1985) 168 Cal.App.3d 445, 450-453 [214 Cal.Rptr. 249].) Further, driving may be
established through circumstantial evidence. (Mercer,supra, 53 Cal.3d at p. 770;
People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 [222 Cal.Rptr. 540] [sufficient
evidence of driving where the vehicle was parked on the freeway, over a mile from
the on-ramp, and the defendant, the sole occupant of the vehicle, was found in the
drivers seat with the vehicle’s engine running].) See CALCRIM No. 2241, Driver
and Driving Defined.
PAS Test Results
The results of a preliminary alcohol screening (PAS) test “are admissible upon a
showing of either compliance with title 17 or the foundational elements of (1)
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properly functioning equipment, (2) a properly administered test, and (3) a qualified
operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d
854, 49 P.3d 203].)
Presumption Arising From Test Results - Timing
Unlike the statute on driving with a blood alcohol level of 0.08 percent or more, the
statute permitting the jury to presume that the defendant was under the influence if
he or she had a blood alcohol level of 0.08 percent or more does not contain a time
limit for administering the test. (Veh. Code, § 23610; People v. Schrieber (1975) 45
Cal.App.3d 917, 922 [119 Cal.Rptr. 812].) However, the court in Schrieber,supra,
noted that the mandatory testing statute provides that “the test must be incidental to
both the offense and to the arrest and . . . no substantial time [should] elapse . . .
between the offense and the arrest.” (Id. at p. 921.)
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.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1] (Matthew Bender).
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