CALCRIM No. 2114. Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire (Veh. Code, § 23152(e))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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2114.Driving With 0.04 Percent Blood Alcohol With a Passenger
for Hire (Veh. Code, § 23152(e))
The defendant is charged [in Count ] with driving with a blood-
alcohol level of 0.04 percent or more with a passenger for hire [in
violation of Vehicle Code section 23152(e)].
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 0.04
percent or more by weight;
AND
3. When (he/she) drove, there was a passenger for hire in the
vehicle.
A person is a passenger for hire when the person or someone else pays,
or is expected to pay, for the ride, the payment is or will be with money
or something else of value, and the payment is made to, or expected to
be made to, the owner, operator, agent or any other person with an
interest in the vehicle.
[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 0.04 percent or more, you may, but are
not required to, conclude that the defendant’s blood alcohol level was
0.04 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 March 2018, effective July 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.
Do not give this instruction if the court has bifurcated the trial. Instead, give
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
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Blood Alcohol: Prior Convictions - Bifurcated Trial. See the Bench Notes to
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive
discussion of bifurcation.
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(e); 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 0.4 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 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(e).
Partition Ratio. Veh. Code, § 23152; People v. Bransford (1994) 8 Cal.4th 885,
890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
Presumptions. Veh. Code, §§ 23152(e), 23610; Evid. Code, § 607; People v.
Milham (1984) 159 Cal.App.3d 487, 503-505 [205 Cal.Rptr. 688].
Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
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RELATED ISSUES
Defense Stipulation to Prior Convictions
The defendant may stipulate to the truth of the prior convictions. (People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) If the defendant
stipulates, 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].)
Motion for Bifurcated Trial
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 [71 Cal.Rptr.2d 41]; People v. Weathington,supra,
231 Cal.App.3d at p. 90.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 272-277.
2115-2124. Reserved for Future Use
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