California Criminal Jury Instructions (CALCRIM) (2017)

2111. Driving With 0.08 Percent Blood Alcohol

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2111.Driving With 0.08 Percent Blood Alcohol (Veh. Code,
§ 23152(b))
The defendant is charged [in Count ] with driving with a blood
alcohol level of 0.08 percent or more [in violation of Vehicle Code
section 23152(b)].
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’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) 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.]
New January 2006; Revised August 2006, June 2007, April 2008, August 2015
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 Percent Blood Alcohol: Prior Convictions. If the
court grants a bifurcated trial, give CALCRIM No. 2126, Driving Under the
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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 [79 Cal. Rptr. 2d
690].)
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].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Related Instructions
CALCRIM No. 2110, Driving Under the Influence.
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.
AUTHORITY
• Elements Veh. Code, § 23152(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, §§ 23152(b), 23610; 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].
VEHICLE OFFENSES CALCRIM No. 2111
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• Prior Convictions People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 272–277.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1] (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.
RELATED ISSUES
Partition Ratio
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].)
See the Related Issues section in CALCRIM No. 2110, Driving Under the
Influence.
CALCRIM No. 2111 VEHICLE OFFENSES
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