Criminal Law

2126. Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions - Bifurcated Trial

The People have alleged that the defendant was previously convicted of (another/other) driving under the influence offense[s]. 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>.]

[In deciding whether the People have proved the allegation[s], consider only the evidence presented in this proceeding. Do not consider your verdict or any evidence from the earlier part of the trial.]

You may not return a finding that (the/any) alleged conviction has or has not been proved unless all 12 of you agree on that finding.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on proof of the alleged prior convictions. Give this instruction if the court has granted a bifurcated trial. The court must also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial.

Give the bracketed paragraph that begins with "In deciding whether the People have proved" on request.

The court must provide the jury with a verdict form on which the jury will indicate if the prior conviction has been proved. (Pen. Code, § 1158.)


Elements. Veh. Code, §§ 23550, 23550.5 & 23566.

Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].

Bifurcation. People v. Calderon (1994) 9 Cal.4th 69, 77-79 [36 Cal.Rptr.2d 333]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334- 1336 [71 Cal.Rptr.2d 41].

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].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 222-225.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.02[3][d] (Matthew Bender).

Related Issues

See the Related Issues section in CALCRIM No. 2125, Driving Under the Influence or With 0.08 Percent Blood Alcohol: Prior Convictions, and CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial.

(New January 2006)