California Criminal Jury Instructions (CALCRIM) (2017)

2113. Driving With 0.05 Percent Blood Alcohol When Under 21

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2113.Driving With 0.05 Percent Blood Alcohol When Under 21
(Veh. Code, § 23140(a))
The defendant is charged [in Count ] with driving when under
the age of 21 years with a blood alcohol level of 0.05 percent or more
[in violation of Vehicle Code section 23140(a)].
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
0.05 percent or more by weight;
AND
3. At that time, the defendant was under 21 years old.
[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.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime. Note that this offense is an infraction. (Veh. Code, §§ 40000.1,
40000.15.) However, this instruction has been included because this offense may
serve as a predicate offense for gross vehicular manslaughter while intoxicated or
vehicular manslaughter while intoxicated. (Pen. Code, §§ 191.5, 192(c)(3); see
People v. Goslar (1999) 70 Cal.App.4th 270, 275–276 [82 Cal.Rptr.2d 558].)
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].)
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Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements Veh. Code, § 23140(a); Burg v. Municipal Court (1983) 35 Cal.3d
257, 265–266 [198 Cal.Rptr. 145, 673 P.2d 732].
• Statute Constitutional See Burg v. Municipal Court (1983) 35 Cal.3d 257, 273
[198 Cal.Rptr. 145, 673 P.2d 732]; People v. Goslar (1999) 70 Cal.App.4th 270,
275–276 [82 Cal.Rptr.2d 558].
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[1A][a] (Matthew Bender).
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2111, Driving With 0.08 Percent
Blood Alcohol.
2114–2124. Reserved for Future Use
CALCRIM No. 2113 VEHICLE OFFENSES
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