Chapter 89

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89.3 Defense Theory That Defendant Was Not Under The Influence

    89.3.1 Drunk Driving: Under The Influence Requires Impairment To An Appreciable Degree
    89.3.2 Drunk Driving: Drinking And Driving Not Prohibited
    89.3.3 Drunk Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient
    89.3.4 Drunk Driving: Factors To Be Considered
    89.3.5 Under The Influence: Jury Must Consider Impact On The Particular Defendant -- Not The Ordinary Person
    89.3.6 Under The Influence: Lay Opinion Testimony As To Under The Influence
    89.3.7 Defendant’s Admission Of Drinking Insufficient To Prove Driving While Under The Influence
    89.3.8 Drunk Driving: Requirement Of Nexus Between Driving And Excessive Blood Or Breath Alcohol Concentration
    89.3.9 Drunk Driving: Intoxication Requires More Than Being Under The Influence Of Alcohol

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VOLUME 7 - CHAPTER 89

89.3.1 Drunk Driving: Under The Influence Requires Impairment To An Appreciable Degree

RATIONALE: To be under the influence a person's faculties must be sufficiently impaired to an appreciable degree. Without an explanatory instruction on this point the jury may not apply the correct standard.

POINTS AND AUTHORITIES: Many jurisdictions recognize the need to instruct the jury that the defendant must be under the influence to an "appreciable degree" has been approved. (See e.g., Uldrich v. State (NE 1956) 77 NW2d 305, 309; see also City of Toledo v. Starks (OH 1971) 267 NE2d 824, 828; Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-5(l), p. 391; ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 23.29 [Definition Of Under The Influence Of Alcohol] (West, 4th ed. 2000); UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2701 [Definition-Under The Influence-Intoxicating Liquor] ¶ 2-3 (Oregon State Bar, 1998); VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 21.200 [Under Influence Of Alcohol-Definition] p. I-487 (Lexis, 2000); but see People v. Weathington (CA 1991) 231 CA3d 69, 80-81 [282 CR 170] [no right to requested pinpoint instruction adding the phrase "to an appreciable degree"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION # 1:

Under the influence of alcohol means that a person's mental or physical faculties are so impaired as to reduce his or her ability to think and act with ordinary care.

[See generally Mills v. Edgar (IL 1989) 534 NE2d 187; cf. ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 23.29 [Definition Of Under The Influence Of Alcohol] (West, 4th ed. 2000).]

SAMPLE INSTRUCTION # 2:

To establish that the defendant was "under the influence of intoxicating liquor" the prosecution must prove beyond a reasonable doubt that [his] [her] physical or mental faculties were adversely affected by the intoxicating liquor to a noticeable or perceptible degree.

[See generally City of Toledo v. Starks (OH 1971) 267 NE2d 824, 828; cf. UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2701, [Definition-Under The Influence-Intoxicating Liquor] ¶ 2-3 (Oregon State Bar, 1998).]

SAMPLE INSTRUCTION # 3:

If the consumption of alcohol so affected the nervous system, brain or muscles of the defendant so as to impair in an appreciable degree his ability to operate the vehicle, then the defendant was under the influence of alcohol. Something is appreciable if it is noticeable or perceptible. Appreciable is not to be confused with substantial.

[See Village of New London v. Bloom UNPUBLISHED (Ohio App. 6 Dist.) 1994 WL 101953, *2.]

SAMPLE INSTRUCTION # 4:

Under the influence of intoxicating liquor within the meaning of the ordinance can be defined as that condition in which a person has consumed sufficient alcohol as to affect his nervous system, brain, or muscles to the extent as to impair to an appreciable degree his ability to operate a motor vehicle in the manner that an ordinary, prudent and cautious man in the full possession of his faculties would drive or operate a similar vehicle.

[See City of Toledo v. Starks (OH 1971) 267 NE2d 824, 828.]

SAMPLE INSTRUCTION # 5:

A person is deemed to be under the influence of or affected by intoxicating liquor if such person's ability to operate a motor vehicle is lessened in any appreciable degree.

[See generally State v. Hansen (WA 1976) 546 P2d 1242, 1243; State v. Hurd (WA 1940) 105 P2d 59, 62; cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 92.10 [Under The Influence Of Or Affected By Intoxicating Liquor Or Drugs-Definition] (West, 2nd ed. 1994).]

SAMPLE INSTRUCTION # 6:

To prove that the defendant was under the influence of alcohol the prosecution must prove beyond a reasonable doubt that alcohol affected the defendant's nervous system, brain, or muscles, so as to impair, to an appreciable degree, [his] [her] ability to operate the vehicle in the manner that an ordinary, prudent and cautious person, in the full possession of his or her faculties, using reasonable care, could operate a similar vehicle under like circumstances.

[Cf. Cowan, Hayne & Fox, Defending DUIs In Washington (Lexis, 1999) § 16.2, Inst. No. 12, ¶ 2.]

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89.3.2 Drunk Driving: Drinking And Driving Not Prohibited

RATIONALE: Under most statutes, it is not simply drinking and driving that is prohibited. Rather it is driving under the influence. Without an explanatory instruction the jury may not understand this distinction.

POINTS AND AUTHORITIES: Erwin, Defense Of Drunk Driving Cases (Lexis, 3rd Ed. 2000) § 51.08 [1]; Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-5(a), p. 388; see also People v. Davis (CA 1969) 270 CA2d 197 [75 CR 627]; Burkhalter v. State (GA 1972) 188 SE2d 166; State v. Noble (OR 1926) 250 P 833; Stoner v. Penn-Brixite (PA 1955) 110 A2d 904, 906.

See also FORECITE National™ 89.3.3 [Drunk Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION # 1:

The law does not prohibit drinking and driving. Rather, to convict the defendant you must find beyond a reasonable doubt that the defendant was under the influence of alcohol when [he] [she] drove.

[Cf. Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-26 [Instruction 32-Operating Understand The Influence] (Lexis, 1999); UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2701, [Definition-Under The Influence-Intoxicating Liquor] ¶ 1 (Oregon State Bar, 1998); REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 28.692(A)(14) [Impairment In The Slightest Degree] (CLE State Bar of Arizona, 1996).]

SAMPLE INSTRUCTION # 2:

Because a person has been drinking alcoholic beverages and then drives a motor vehicle does not mean [he] [she] was driving under the influence of intoxicating liquor.

[REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 28.692(A)(14) [Impairment In The Slightest Degree] (CLE State Bar of Arizona, 1996); see also State v. Noble (OR 1926) 250 P 833; State v. Franco (WA 1982) 639 P2d 1320, 1324; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2701, [Definition-Under The Influence-Intoxicating Liquor] ¶ 1 (Oregon State Bar, 1998).]

SAMPLE INSTRUCTION # 3:

Driving after drinking alcoholic beverages is not illegal unless the defendant was sufficiently under the influence as defined in these instructions.

[See generally State v. Noble (OR 1926) 250 P 833; State v. Franco (WA 1982) 639 P2d 1320, 1324; cf. UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2701, [Definition-Under The Influence-Intoxicating Liquor] ¶ 1 (Oregon State Bar, 1998).]

SAMPLE INSTRUCTION # 4:

Even if you find that the defendant drank an alcoholic beverage before driving an automobile, this is not alone sufficient to prove beyond a reasonable doubt that [he] [she] drove while under the influence of alcohol. Similarly, the testimony of the prosecution's witness that he smelled alcohol on the breath of the defendant is not sufficient to prove beyond a reasonable doubt that the defendant drove while under the influence of alcohol.

[Cf. Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-5(a), p. 388.]

SAMPLE INSTRUCTION # 5:

It is not unlawful for a person to consume alcohol and drive. The law recognizes that a person may have consumed alcohol and yet not be under the influence of it. It is not enough to prove merely that a driver has consumed alcohol.

Therefore, even if a witness smelled alcohol on the defendant's breath, this is not alone sufficient to prove beyond a reasonable doubt that the defendant was under the influence.

[See generally State v. Franco (WA 1982) 639 P2d 1320, 1324; State v. Hansen (WA 1976) 546 P2d 1242; cf. Cowan, Hayne, Fox, Defending DUIs in Washington (Lexis, 1999) § 16.2, Inst. No. 13.]

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89.3.3 Drunk Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient

RATIONALE: The odor of alcohol on a person's breath merely establishes that the person has consumed alcohol, not that he or she is under the influence.

POINTS AND AUTHORITIES: Erwin, Defense Of Drunk Driving Cases (Lexis, 3rd Ed. 2000) § 51.08 [2]; see also People v. Roybal (CO 1982) 655 P2d 410, 413; Baldwin v. Schipper (CO 1964) 393 P2d 363, 365; State v. Hainbuch (OH 1943) 57 NE2d 940, 942.

It should also be noted that according to the Attorney's Textbook Of Medicine (Lexis) § 133.10 "[i]n dealing with all alcoholic beverages the component of concern with respect to sobriety is ethyl alcohol. Although it is one of a large category of compounds chemically known as alcohols, this particular alcohol is the intoxicating element in all alcoholic beverages. In its pure form, it is a colorless limpid fluid with a powerful burning taste but with relatively little odor. The latter fact is of particular interest in view of the observation commonly reported as evidence of intoxication that the breath had a strong odor of alcohol."

See also FORECITE National™ 89.3.2 [Drunk Driving: Drinking And Driving Not Prohibited].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION # 1:

The odor of an alcoholic beverage on the defendant’s breath does not, alone, establish that the defendant is under the influence of an alcoholic beverage. However, it may be considered with all the other facts, circumstances and evidence.

[See generally People v. Roybal (CO 1982) 655 P2d 410, 413; cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-10-4, [Driving Under The Influence-Factors To Be Considered] ¶ 2 (State Bar of South Dakota, 2000).]

SAMPLE INSTRUCTION # 2:

Even if you find that a witness smelled alcohol on the breath of the defendant, this is not alone sufficient to prove that the [defendant drove while under the influence of alcohol] [defendant's faculties were impaired to an appreciable degree].

[Cf. Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-4(a), p. 268, Sent. 2.]

SAMPLE INSTRUCTION # 3:

The testimony of witnesses who allegedly smelled alcohol on the breath of the defendant is not alone sufficient to prove that the [defendant drove while under the influence of alcohol] [defendant's faculties were impaired to an appreciable degree].

[Cf. Erwin, Defense Of Drunk Driving Cases (Lexis, 3rd Ed. 2000) § 51.08 [2].]

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89.3.4 Drunk Driving: Factors To Be Considered

RATIONALE: When there is an issue as to whether the defendant was under the influence, it may be appropriate to instruct the jury on the factors to consider in order to assure that the jury makes a reliable determination on this issue.

POINTS AND AUTHORITIES: SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-10-4, [Driving Under The Influence-Factors To Be Considered] ¶ 1 (State Bar of South Dakota, 2000); see FORECITE National™ 89.3.3 [Drunk Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION:

    In deciding whether the prosecution has proved beyond a reasonable doubt that the defendant was under the influence of an alcoholic beverage at the time of the offense consider all of the evidence including but not limited to the following:

    1.    The appearance, acts and conduct of the defendant;

    2.    The type and amount of alcohol, if any, the defendant had been drinking;

    3.    The time of drinking in comparison to the time of the alleged offense.

    4.    Any other factor which may have affected the amount of alcohol in the defendant's blood such as body size, food in the stomach, _________________, etc.;

    5.    The manner of driving;

    6.    Any other relevant fact or circumstance.

[Source: FORECITE National™.]

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89.3.5 Under The Influence: Jury Must Consider Impact On The Particular Defendant -- Not The Ordinary Person

RATIONALE: When the defense theory is that the defendant had an unusual tolerance for alcohol the defendant should have the right to an instruction explaining that the jury should consider how the defendant, not an ordinary person, was affected by the alcohol consumed.

POINTS AND AUTHORITIES: State v. Biggert UNPUBLISHED (OH 1998) 1998 WL 337901 (Ohio App. 6 Dist.).

OPINION AVAILABLE: Click here. [Opinion Bank # O-304].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION:

The question is not how a given amount of [alcohol] [alcohol and drugs] would affect an ordinary person. The question is what effect, if any, did any [alcohol] [alcohol and drugs] consumed by the defendant have on [him] [her].

[See generally State v. Biggert UNPUBLISHED (OH 1998) 1998 WL 337901 (Ohio App. 6 Dist.); cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 545.25(6), [Operating Under The Influence Of Alcohol And/Or Drugs Of Abuse R.C. 4511.19(A)(1)], sent. 2 (Anderson, 2000).]

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89.3.6 Under The Influence: Lay Opinion Testimony As To Under The Influence

RATIONALE: The jury may be unduly influenced by the opinion of a lay witness regarding the defendant's intoxication. Hence, a cautionary instruction regarding this testimony may be appropriate.

POINTS AND AUTHORITIES: State v. Carter (MT 1997) 948 P2d 1173, 1177; see also Brown v. Bryant (OR 1966) 417 P2d 1002, 1103.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.7].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION:

    Although a witness may give an opinion as to whether another person was under the influence, you are not required to accept that opinion. To decide what weight you will give to a witness’s opinion, consider all the relevant factors, including but not limited to, the following:

    1.    The ability of the witness to form the opinion;

    2.    The believability of the witness;

    3.    How the witness reached his or her opinion;

    4.    The experience of the witness; and

    5.    The opportunity of the witness to observe the defendant.

[See generally Brown v. Bryant (OR 1966) 417 P2d 1002, 1103; see also State v. Carter (MT 1997) 948 P2d 1173, 1177; cf. UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 2707 [Opinion Evidence Of Being Under The Influence Of Intoxicants] (Oregon State Bar, 10/94).]

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89.3.7 Defendant’s Admission Of Drinking Insufficient To Prove Driving While Under The Influence

RATIONALE: Without a cautionary instruction the jury may not understand that an admission of drinking by the defendant does not alone prove his or her guilt of driving under the influence.

POINTS AND AUTHORITIES: See People v. Bronzino (NY 1966) 269 NYS2d 83; more generally, see Burkhalter v. State (GA 1972) 188 SE2d 166.

See also FORECITE National™ 89.3.2 [Drunk Driving: Drinking And Driving Not Prohibited].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 5.7].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION:

    The defendant's [alleged] admission that [he] [she] drank an alcoholic beverage before driving is not alone sufficient to prove beyond a reasonable doubt that [he] [she] drove while under the influence of alcohol.

    It is not unlawful for a person to consume alcohol and drive. The law recognizes that a person may have consumed alcohol and yet not be under the influence of it. Merely proving that a driver has consumed alcohol is not enough to convict the person of __________ <e.g., drunk driving>.

    Therefore, even if the defendant admitted drinking an alcoholic beverage, this is not alone sufficient to prove that [the defendant was under the influence] [defendant's faculties were impaired to an appreciable degree].

[See generally People v. Bronzino (NY 1966) 269 NYS2d 83; cf. Reiff, Drunk Driving and Related Vehicular Offenses 2d Ed. (Lexis, 1999) § 17-5(a) p. 388.]

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89.3.8 Drunk Driving: Requirement Of Nexus Between Driving And Excessive Blood Or Breath Alcohol Concentration

PRACTICE NOTE: A statute which imposes criminal liability for driving with a specified blood alcohol level should be interpreted, and the jury should be instructed, so as to require a nexus between the driving and the excessive blood or breath alcohol concentration. That is, the jury must be instructed to find that the defendant was driving with the specified blood alcohol concentration. (See OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 6-18 [(Of Alcohol)/(With Alcohol Concentration Of .10 Or More)-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

"The elements of DUI, including those the prosecution must establish beyond and to the exclusion of every reasonable doubt, are universal to most jurisdictions. They include the following:

(1) the defendant operated a motor vehicle upon a roadway;

(2) within the jurisdiction of the court;

(3) and the operation occurred while the defendant was either

(a) under the influence of an intoxicant, narcotic, or hallucinogenic to the extent that his or her 'normal faculties' were impaired; or

(b) driving with a blood or breath alcohol concentration above a prohibited level (often referred to as DUBAL, for 'driving with an unlawful blood alcohol level').

(Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 2-1, pp. 5-7.) Hence, "not only must the defendant be either driving with unlawful blood alcohol level or impaired at the time of the arrest, but, first and foremost, she must have been driving or in actual physical control of the suspect vehicle as well." (Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 2-3(b), p. 9.)

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89.3.9 Drunk Driving: Intoxication Requires More Than Being Under The Influence Of Alcohol

RATIONALE: It may be appropriate to instruct the jury on the essential difference between being under the influence of alcohol and being intoxicated. Intoxication is a substantially greater degree of inebriation.

POINTS AND AUTHORITIES: "The term 'intoxicated' is stronger than and includes the term 'under the influence of intoxicating liquor.'" (Wright v. State (FL 1985) 478 So2d 825, 827.) Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that he has consumed has substantially impaired normal coordination. (Wilson v. State (MD 1999) 723 A2d 494, 498.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.10 [Drunk Driving].

SAMPLE INSTRUCTION # 1:

Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that [he] [she] has consumed has substantially impaired [his] [her] normal coordination.

[See generally Wilson v. State (MD 1999) 723 A2d 494, 498; cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:10 [Driving While Intoxicated And Driving Under The Influence of Alcohol] ¶ 3 (Micpel, 1999).]

SAMPLE INSTRUCTION # 2:

"Intoxication" means more than merely being under the influence of intoxicating liquor. As used in these charges, intoxication means that the defendant must have been so affected from the drinking of intoxicating liquor as to have lost or been deprived of the normal control of either his body and/or his mental faculties.

[See generally Wright v. State (FL 1985) 478 So2d 825, 827; cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL 84 CASES [DUI Manslaughter] (Florida Bar,7/98).]

SAMPLE INSTRUCTION # 3:

The term "intoxicated" requires greater impairment than the term "under the influence of intoxicating beverages." To be intoxicated a person must be deprived of his or her normal faculties.

[See generally Wright v. State (FL 1985) 478 So2d 825, 827; see also Wilson v. State (MD 1999) 723 A2d 494, 498; cf. Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-4(d), p. 269.]