CACI 709 Driving Under the Influence (Veh. Code, §§ 23152, 23153)

New September 2003; Revised May 2020

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This instruction is designed to supplement a negligence per se instruction on driving under the influence.

The presumption of intoxication based on a 0.08 blood level applies to criminal prosecutions only. There is no statutory or case authority supporting the conclusion that the presumption applies in civil cases. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 334 [145 Cal.Rptr. 47].)

For a definition of “drug,” see Vehicle Code section 312: “The term ‘drug’ means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

•Driving Under the Influence of Alcohol or Drugs. Vehicle Code sections 23152(a), 23153(a).

•“All of the decided cases on the subject recognize that it is negligence as a matter of law to drive a vehicle upon a public highway while in an intoxicated condition.” (Zamucen v. Crocker (1957) 149 Cal.App.2d 312, 316 [308 P.2d 384], internal citations omitted.)

•The term “under the influence” was first defined in People v. Dingle (1922) 56 Cal.App. 445, 449 [205 P. 705], as follows: “[I]f intoxicating liquor has so far affected the nervous system, brain, or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is ‘under the influence of intoxicating liquor’ within the meaning of the statute.”

•“One is not necessarily under the influence of intoxicating liquor as the result of taking one or more drinks. The circumstances and effect must be considered; whether or not a person was under the influence of intoxicating liquor at a certain time is a question of fact for the jury to decide.” (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319].)

•Driving while “under the influence” under Vehicle Code sections 23152 and 23153 is not the same as “being under the influence” of a controlled substance under Health and Safety Code section 11550. Under the Vehicle Code provisions, “the defendant’s ability to drive must actually be impaired,” while the Health and Safety Code provision is violated as soon as the influence is present “in any detectable manner.” (People v. Enriquez (1996) 42 Cal.App.4th 661, 665 [49 Cal.Rptr.2d 710].)

•Courts have also distinguished the “under the influence” standard from the “obvious intoxication” standard used in Business and Professions Code section 25602.1. (Jones v. Toyota Motor Co. (1988) 198 Cal.App.3d 364, 368 [243 Cal.Rptr. 611]: “ ‘Under the influence’ is defined by a person’s capability to drive safely, whereas ‘obvious intoxication’ is defined by a person’s appearance.”)