California Criminal Jury Instructions (CALCRIM) (2017)

2131. Refusal - Enhancement

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2131.Refusal—Enhancement (Veh. Code, §§ 23577, 23612)
If you find the defendant guilty of (causing injury while driving under
the influence/ [or] [the lesser offense of] driving under the influence),
you must then decide whether the People have proved the additional
allegation that the defendant willfully refused to (submit to/ [or]
complete) a chemical test to determine ((his/her) blood alcohol content/
[or] whether (he/she) had consumed a drug).
To prove this allegation, the People must prove that:
1. A peace officer asked the defendant to submit to a chemical test
to determine ((his/her) blood alcohol content/ [or] whether (he/
she) had consumed a drug);
2. The peace officer fully advised the defendant of the requirement
to submit to a test and the consequences of not submitting to a
test;
[AND]
3. The defendant willfully refused to (submit to a test/ [or] to
complete the test)(./;)
[AND
4. The peace officer lawfully arrested the defendant and had
reasonable cause to believe that defendant was driving a motor
vehicle in violation of Vehicle Code section 23140, 23152, or
23153.]
To have fully advised the defendant, the peace officer must have told
(him/her) all of the following information:
1. (He/She) may choose a blood(,/ or) breath[, or urine] test; [if (he/
she) completes a breath test, (he/she) may also be required to
submit to a blood [or urine] test to determine if (he/she) had
consumed a drug;] [if only one test is available, (he/she) must
complete the test available;] [if (he/she) is not able to complete
the test chosen, (he/she) must submit to (the other/another) test;]
2. (He/She) does not have the right to have an attorney present
before saying whether (he/she) will submit to a test, before
deciding which test to take, or during administration of a test;
3. If (he/she) refuses to submit to a test, the refusal may be used
against (him/her) in court;
4. Failure to submit to or complete a test will result in a fine and
mandatory imprisonment if (he/she) is convicted of driving under
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the influence or with a blood alcohol level of 0.08 percent or
more;
AND
5. Failure to submit to or complete a test will result in suspension
of (his/her) driving privilege for one year or revocation of (his/
her) driving privilege for two or three years.
5. <Short Alternative; see Bench Notes>
5. [(His/Her) driving privilege will be revoked for two or three
years if (he/she) has previously been convicted of one or more
specific offenses related to driving under the influence or if (his/
her) driving privilege has previously been suspended or revoked.]
5. <Long Alternative; see Bench Notes>
[A. (His/Her) driving privilege will be revoked for two years if
(he/she) has been convicted within the previous (seven/ten)
years of a separate violation of Vehicle Code section 23140,
23152, 23153, or 23103 as specified in section 23103.5, or of
Penal Code section 191.5 or 192(c)(3). (His/Her) driving
privilege will also be revoked for two years if (his/her) driving
privilege has been suspended or revoked under Vehicle Code
section 13353, 13353.1, or 13353.2 for an offense that occurred
on a separate occasion within the previous (seven/ten) years;
[A. AND
B. (His/Her) driving privilege will be revoked for three years if
(he/she) has been convicted within the previous (seven/ten)
years of two or more of the offenses just listed. (His/Her)
driving privilege will also be revoked for three years if (his/
her) driving privilege was previously suspended or revoked on
two occasions, or if (he/she) has had any combination of two
convictions, suspensions, or revocations, on separate
occasions, within the previous (seven/ten) years.]
[Vehicle Code section 23140 prohibits a person under the age of 21 from
driving with a blood alcohol content of 0.05 percent or more. Vehicle
Code section 23152 prohibits driving under the influence of alcohol or
drugs or driving with a blood alcohol level of 0.08 percent or more.
Vehicle Code section 23153 prohibits causing injury while driving under
the influence of alcohol or drugs or causing injury while driving with a
blood alcohol level of 0.08 percent or more. Vehicle Code section 23103
as specified in section 23103.5 prohibits reckless driving involving
alcohol. Penal Code section 191.5 prohibits gross vehicular
manslaughter while intoxicated, and Penal Code section 192(c)(3)
prohibits vehicular manslaughter while intoxicated.]
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Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A person employed as a police officer by <insert name of
agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace
officer if <insert description of facts necessary to make
employee a peace offıcer, e.g., “designated by the director of the agency as
a peace offıcer”>.]
[A defendant’s silence in response to an officer’s request to (submit to a
chemical test/ [or] complete a chemical test) may be a refusal. If you
conclude that the defendant was silent in response to an officer’s request
to (submit to a chemical test/[or] complete a chemical test), you must
decide whether that conduct was a refusal.]
The People have the burden of proving beyond a reasonable doubt that
the defendant willfully refused to (submit to/ [or] complete) a chemical
test to determine ((his/her) blood alcohol content/ [or] whether (he/she)
had consumed a drug). If the People have not met this burden, you
must find this allegation has not been proved.
New January 2006; Revised August 2009, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the enhancement.
Do not give this instruction if the defendant is exempted from the implied consent
law because the defendant has hemophilia or is taking anticoagulants. (See Veh.
Code, § 23612(b), (c).)
The implied consent statute states that “[t]he testing shall be incidental to a lawful
arrest and administered at the direction of a peace officer having reasonable cause
to believe the person was driving a motor vehicle in violation of Section 23140,
23152, or 23153.” (Veh. Code, § 23612(a)(1)(C).) If there is a factual issue whether
the defendant was lawfully arrested or whether the officer had reasonable cause to
believe the defendant was under the influence, the court should consider whether
giving bracketed element 4 is appropriate and whether the jury should be instructed
on these additional issues. For an instruction on lawful arrest and reasonable cause,
see CALCRIM No. 2670, Lawful Performance: Peace Offıcer.
No reported case has established the degree of detail with which the jury must be
instructed regarding the refusal admonition mandated by statute. The committee has
provided several different options. The first sentence of element 5 under the
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definition of “fully advised” must be given. The court then may add either the
short alternative or the long alternative or neither. If there is no issue regarding the
two-and three-year revocations in the case and both parties agree, the court may
choose to use the short alternative or to give just the first sentence of element 5.
The court may choose to use the long alternative if there is an objection to the
short version or the court determines that the longer version is more appropriate.
The court may also choose to give the bracketed paragraph defining the Vehicle
and Penal Code sections discussed in the long alternative at its discretion.
When giving the long version, give the option of “ten years” for the time period in
which the prior conviction may be used, unless the court determines that the law
prior to January 1, 2005 is applicable. In such case, the court must select the
“seven-year” time period.
The jury must determine whether the witness is a peace officer. (People v. Brown
(1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may
instruct the jury on the appropriate definition of “peace officer” from the statute
(e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police
Officer are peace officers”). (Ibid.) However, the court may not instruct the jury
that the witness was a peace officer as a matter of law (e.g., “Officer Reed was a
peace officer”). (Ibid.) If the witness is a police officer, give the bracketed sentence
that begins with “A person employed as a police officer.” If the witness is another
type of peace officer, give the bracketed sentence that begins with “A person
employed by.”
AUTHORITY
• Enhancements. Veh. Code, §§ 23577 & 23612.
Statute Constitutional. Quintana v. Municipal Court (1987) 192 Cal.App.3d
361, 366–369 [237 Cal.Rptr. 397].
• Statutory Admonitions Not Inherently Confusing or Misleading. Blitzstein v.
Dept. of Motor Vehicles (1988) 199 Cal.App.3d 138, 142 [244 Cal.Rptr. 624].
• Silence in Response to Request May Constitute Refusal. Garcia v. Department
of Motor Vehicles (2010) 185 Cal.App.4th 73, 82–84 [109 Cal.Rptr.3d 906].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 293–302.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[2][f], [4][a], [b] (Matthew Bender).
RELATED ISSUES
Admonition Must Convey Strong Likelihood of Suspension
It is insufficient for the officer to advise the defendant that his or her license
“could” be suspended. (Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903,
905–906 [101 Cal.Rptr. 387, 495 P.2d 1307]; Giomi v. Dept. of Motor Vehicles
(1971) 15 Cal.App.3d 905, 907 [93 Cal.Rptr. 613].) The officer must convey to the
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defendant that there is a strong likelihood that his or her license will be suspended.
(Decker, supra, 6 Cal.3d at p. 906; Giomi, supra, 15 Cal.App.3d at p. 907.)
Admonition Must Be Clearly Conveyed
“[T]he burden is properly placed on the officer to give the warning required by
section 13353 in a manner comprehensible to the driver.” (Thompson v. Dept. of
Motor Vehicles (1980) 107 Cal.App.3d 354, 363 [165 Cal.Rptr. 626].) Thus, in
Thompson, supra, 107 Cal.App.3d at p. 363, the court set aside the defendant’s
license suspension because radio traffic prevented the defendant from hearing the
admonition. However, where the defendant’s own “obstreperous conduct . . .
prevented the officer from completing the admonition,” or where the defendant’s
own intoxication prevented him or her from understanding the admonition, the
defendant may be held responsible for refusing to submit to a chemical test.
(Morphew v. Dept. of Motor Vehicles (1982) 137 Cal.App.3d 738, 743–744 [188
Cal.Rptr. 126]; Bush v. Bright (1968) 264 Cal.App.2d 788, 792 [71 Cal.Rptr. 123].)
Defendant Incapable of Understanding Due to Injury or Illness
When the defendant, through no fault of his or her own, is incapable of
understanding the admonition or of submitting to the test, the defendant cannot be
penalized for refusing. (Hughey v. Dept. of Motor Vehicles (1991) 235 Cal.App.3d
752, 760 [1 Cal.Rptr.2d 115].) Thus, in Hughey, supra, 235 Cal.App.3d at p. 760,
the court held that the defendant was rendered incapable of refusing due to a head
trauma. However, in McDonnell v. Dept. of Motor Vehicles (1975) 45 Cal.App.3d
653, 662 [119 Cal.Rptr. 804], the court upheld the license suspension when
defendant’s use of alcohol triggered a hypoglycemic attack. The court held that
because voluntary alcohol use aggravated the defendant’s illness, the defendant
could be held responsible for his subsequent refusal, even if the illness prevented
the defendant from understanding the admonition. (Ibid.)
See the Related Issues section in CALCRIM No. 2130, Refusal—Consciousness of
Guilt.
2132–2139. Reserved for Future Use
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