2111. Driving With 0.08 Percent Blood Alcohol
The defendant is charged [in Count ______] with 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.
[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 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 Percent Blood Alcohol: Prior Convictions. 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].)
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].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
CALCRIM No. 2110, Driving Under the Influence.
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].
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.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.02 (Matthew Bender).
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.
In 1990, the Legislature amended Vehicle Code section 23152(b) to state that the "percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." Following this amendment, the Supreme Court held that evidence of variability of breath-alcohol partition ratios was not relevant and properly excluded. (People v. Bransford (1994) 8 Cal.4th 885, 890-893 [35 Cal.Rptr.2d 613, 884 P.2d 70].) However, evidence of variability in urine-alcohol partition ratios is admissible. (People v. Acevedo (2001) 93 Cal.App.4th 757, 765 [113 Cal.Rptr.2d 437].)
See the Related Issues section in CALCRIM No. 2110, Driving Under the Influence.
(New January 2006)