2112. Driving While Addicted to a Drug
The defendant is charged [in Count ______] with driving while addicted to a drug.
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 was addicted to a drug.
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.
A person is addicted to a drug if he or she:
1. Has become physically dependent on the drug, suffering withdrawal symptoms if he or she is deprived of it;
2. Has developed a tolerance to the drug's effects and therefore requires larger and more potent doses;
3. Has become emotionally dependent on the drug, experiencing a compulsive need to continue its use.
[It is not a defense that the defendant was legally entitled to use the drug.]
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 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]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334-1336; 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].)
Vehicle Code section 23630 states that the fact that the defendant was legally entitled to use the drug is not a defense to a charge of driving under the influence. (Veh. Code, § 23630.) It is unclear whether this provision applies to the charge of driving while addicted. If the court concludes that the statute does apply, the court may add the bracketed sentence at the end of the instruction: "It is not a defense that the defendant was legally entitled to use the drug."
In addition, Vehicle Code section 23152(c) states "[t]his subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code." If there is evidence that the defendant is participating in an approved treatment program, the court has a sua sponte duty to instruct on this defense.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Elements. Veh. Code, § 23152(c).
Drug Defined. Veh. Code, § 312.
Addict Defined. People v. O'Neil (1965) 62 Cal.2d 748, 754 [44 Cal.Rptr. 320, 401 P.2d 928].
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[a] (Matthew Bender).
(New January 2006)