CALCRIM No. 2125. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions (Veh. Code, §§ 23550, 23550.5 & 23566)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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(iii) Prior Conviction
2125.Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions (Veh. Code, §§ 23550, 23550.5 &
23566)
If you find the defendant guilty of ([causing injury while] driving under
the influence/ [or] [causing injury while] driving with a blood alcohol
level of (0.08/0.04) percent or more), [or the lesser offense of driving
under the influence [or driving with a blood alcohol level of (0.08/0.04)
percent or more]], you must then determine whether the People have
proved the additional allegation that the defendant has been convicted of
(another/other) driving under the influence offense[s] before. It has
already been determined that the defendant is the person named in
exhibits <insert numbers or descriptions of exhibits>. You must
decide whether the evidence proves that the defendant was convicted of
the alleged crime[s].
The People allege that the defendant has been convicted of:
[1.] A violation of <insert Veh. Code section violated>, on
<insert date of conviction>, in the
<insert name of court>, in Case Number <insert docket or
case number>(;/.)
[AND <Repeat for each prior conviction alleged>.]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of <insert other permitted
purpose, e.g., assessing credibility of the defendant>]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving (the/each) alleged conviction beyond a reasonable
doubt. If the People have not met this burden [for any alleged
conviction], you must find that the alleged conviction has not been
proved.
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on proof of the alleged prior
convictions.
Any prior convictions are a sentencing factor for the trial court and not an element
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of the offense. (People v. Burris (2005) 34 Cal.4th 1012, 1016, fn. 3 [22 Cal.Rptr.3d
876, 103 P.3d 276].)
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
Blood Alcohol: Prior Convictions - Bifurcated Trial. See the Bench Notes to
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive
discussion of bifurcation.
This instruction must be given with the appropriate instruction defining the elements
of the driving under the influence offense charged, CALCRIM Nos. 2100, 2101,
2110, 2111.
On request, the court should give the bracketed limiting instruction regarding the
evidence of the prior convictions. (See People v. Valentine (1986) 42 Cal.3d 170,
182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There is no sua sponte duty to give the
limiting instruction and the defense may prefer that no limiting instruction be given.
(See People v. Griggs (2003) 110 Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].)
The court must provide the jury with a verdict form on which the jury will indicate
if the prior convictions have or have not been proved.
AUTHORITY
• Enhancements. Veh. Code, §§ 23550, 23550.5 & 23566.
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
• Judge Determines if Defendant Person Named in Documents. Pen. Code,
§ 1025(b); People v. Garcia (2003) 107 Cal.App.4th 1159, 1165 [132 Cal.Rptr.2d
694].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
RELATED ISSUES
Ten-Year “Washout” Period
Effective January 1, 2005, prior convictions for driving under the influence within
ten years of the current offense may be used for enhancement purposes. (See Veh.
Code, §§ 23550, 23550.5 & 23566.)
Order of Convictions, Not Offenses Relevant
In order for the sentencing enhancements for multiple driving under the influence
offenses to apply, the conviction for the other offense or offenses must predate the
current offense. (People v. Snook (1997) 16 Cal.4th 1210, 1216 [69 Cal.Rptr.2d 615,
947 P.2d 808].) The date on which the other offenses occurred is not relevant.
(Ibid.)
All Offenses Must Occur Within Time Period
“[F]or a fourth DUI offense to be charged as a felony, the offense must be
committed within [. . . ten] years of three or more separate DUI violations resulting
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in convictions, and all four must occur within a period of [. . . ten] years.” (People
v. Munoz (2002) 102 Cal.App.4th 12, 20 [125 Cal.Rptr.2d 182].)
Prior Felony Reduced to Misdemeanor
In People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389 [101 Cal.Rptr.2d 618], the
defendant had been previously convicted of a felony driving under the influence
offense. After successful completion of probation, that felony was reduced to a
misdemeanor under Penal Code section 17(b). (Ibid.) The court held that that
conviction could not later be used as a prior felony conviction to enhance the
defendant’s sentence. (Ibid.)
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.)
See also the Related Issues section and Bench Notes to CALCRIM No. 3100, Prior
Conviction: Nonbifurcated Trial.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 289-292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[3][d] (Matthew Bender).
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