Section 2110 | CALCRIM (Jury Instructions)

Cal.Rptr.2d 641] [italics in original]; People v. Oyaas (1985) 173 Cal.App.3d 663,
668 [219 Cal.Rptr. 243].)
Act Forbidden by Law
The term “ ‘any act forbidden by law’ . . . refers to acts forbidden by the Vehicle
Code . . . .” (People v. Clenney (1958) 165 Cal.App.2d 241, 253 [331 P.2d 696].)
The defendant must commit the act when driving the vehicle. (People v. Capetillo
(1990) 220 Cal.App.3d 211, 217 [269 Cal.Rptr. 250] [violation of Veh. Code,
§ 10851 not sufficient because offense not committed “when” defendant was driving
the vehicle but by mere fact that defendant was driving the vehicle].)
Neglect of Duty Imposed by Law
“In proving the person neglected any duty imposed by law in driving the vehicle, it
is not necessary to prove that any specific section of [the Vehicle Code] was
violated.” (Veh. Code, § 23153(c); People v. Oyaas (1985) 173 Cal.App.3d 663, 669
[219 Cal.Rptr. 243].) “[The] neglect of duty element . . . is satisfied by evidence
which establishes that the defendant’s conduct amounts to no more than ordinary
negligence.” (People v. Oyaas, supra, 173 Cal.App.3d at p. 669.) “[T]he law
imposes on any driver [the duty] to exercise ordinary care at all times and to
maintain a proper control of his or her vehicle.” (Id. at p. 670.)
Multiple Victims to One Drunk Driving Accident
“In Wilkoff v. Superior Court [(1985) 38 Cal.3d 345, 352 [211 Cal.Rptr. 742, 696
P.2d 134]] we held that a defendant cannot be charged with multiple counts of
felony drunk driving under Vehicle Code section 23153, subdivision (a), where
injuries to several people result from one act of drunk driving.” (People v.
McFarland (1989) 47 Cal.3d 798, 802 [254 Cal.Rptr. 331, 765 P.2d 493].) However,
when “a defendant commits vehicular manslaughter with gross negligence[,] . . . he
may properly be punished for [both the vehicular manslaughter and] injury to a
separate individual that results from the same incident.” (Id. at p. 804.) The
prosecution may also charge an enhancement for multiple victims under Vehicle
Code section 23558.
See also the Related Issues section in CALCRIM No. 2110, Driving Under the
Influence.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
2 Witkin, California Evidence (5th ed. 2012) Demonstrative, Experimental, and
Scientific Evidence, § 56.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.36 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02 (Matthew Bender).
VEHICLE OFFENSES
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properly functioning equipment, (2) a properly administered test, and (3) a qualified
operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d
854, 49 P.3d 203].)
Presumption Arising From Test Results—Timing
Unlike the statute on driving with a blood alcohol level of 0.08 percent or more, the
statute permitting the jury to