THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Driving Under The Influence (DUI): Generally
1.
"Under The Influence Of An Intoxicant" Defined
2. Destroyed Breath
Sample: Inference
3. DUI Causing
Injury/Death: Not Guilty Verdict In Criminal Case Will
Have No Effect On Civil
Case
4. DUI With Injury:
"Injury" vs. "Great Bodily Harm"
5. Uniform Standards For
Administration Of Field Sobriety Tests: Jury
May Consider Compliance With
Standards
6. Field Sobriety Tests:
Jury May Consider Not Only The Presence Of Symptoms
of Intoxication, But Also
The Absence Of Such Symptoms
7. Jury May Accept
Defendant’s Explanation For Performance On Field Sobriety
Tests And May
Disregard Results Of Test
8. Defense Theory That
Chemicals Inhaled By Defendant Affected Intoxilyzer Test
9. Jury May Consider
Training Manuals For Intoxilyzer
10. Horizontal Gaze Nystagmus Test:
Factors To Consider
11. Jury Must Be Convinced That
Defendant Consumed Enough Alcohol To Have
Prohibited Alcohol Concentration Or Be
Under The Influence Of
Alcohol At
Time Of Driving
12. Defense Theory That Other
Vehicles Collided Before Defendant Arrived
13. Jury Not To Consider Evidence Of
Drinking As Evidence Of Negligence
Or Recklessness
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. "Under The Influence Of An Intoxicant" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
[The second element of this offense requires that the defendant was under the influence of an intoxicant at the time he drove the motor vehicle.] The phrase "under the influence of an intoxicant" means that the actor's ability to operate a vehicle is materially impaired because of (his/her) consumption of an alcoholic beverage or controlled substance.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms].
See generally NCJIC: Chapter 89: Drunk Driving.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Destroyed Breath Sample: Inference
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard testimony concerning certain physical evidence, namely a breath sample. If you find that the ___________ (city/town/village) of _________ (name of town), as the party in exclusive control of that breath sample, deliberately failed to take steps that reasonably could have been taken to preserve that sample, and instead destroyed the sample, you may infer that the sample would have provided evidence favorable to __________ (name of defendant), but you are not required to draw that inference.
AUTHORITIES:
Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941); Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879).
SAMPLE INSTRUCTION # 2:
Where one party, here the ___________ (city/town/village) of _________ (name of town), had exclusive control over the breath sample at issue and deliberately destroyed that evidence, you may presume that further analysis of that breath sample would have favored __________ (name of defendant), although you are not required to presume so.
AUTHORITIES:
Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810, 821 (1973); State ex rel. Department of Agriculture v. McCarthy, 238 Wis. 258, 271, 299 N.W. 58 (1941); Dimond v. Henderson, 47 Wis. 172, 174-75, 2 N.W. 73 (1879).
SAMPLE INSTRUCTION # 3:
The implied consent law of ________ (state) provides that a person accused of operating a motor vehicle with a prohibited alcohol concentration, who permits the state to test (his/her) breath, blood or urine shall be permitted, upon his or her request, to have an independent test of blood or urine performed at an approved or certified laboratory. The law of ________ (state) further requires that a list of such approved laboratories shall be furnished to all law enforcement agencies in the state.
In weighing the evidence in this case you may consider, if you wish, whether the state of ________ (state) has complied with this requirement and, if it has not done so, whether its failure permits the inference that, had the defendant been informed that ________ (lab/hospital, etc.) was not an approved laboratory and thereupon had (his/her) blood sample tested at an approved laboratory, the results of (his/her) independent test would not support the accusation that (he/she) had driven with a prohibited alcohol concentration.
AUTHORITY:
Wis. Stat. 343.305(6).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
See also THE SHELLOW COLLECTION: Evidence: Missing/Lost/Destroyed Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 36.1 [Destroyed Or Lost Evidence].
See generally NCJIC Chapter 89: Drunk Driving.
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. DUI Causing Injury/Death: Not Guilty Verdict In Criminal Case Will Have No Effect On Civil Case
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you find that the prosecution has not proven its charges against __________ (name of defendant) and you find (him/her) not guilty, this will have no effect, whatsoever on the outcome of any civil action __________[’s] (name of victim) [family] may intend to bring against __________ (name of defendant) and (his/her) insurer.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Purdy, No. F-932187 (Milwaukee County Circuit Court, 1994) [modified].
SAMPLE INSTRUCTION # 2:
If you find that the prosecution has not proven its charges against __________ (name of defendant) and you find (him/her) not guilty of any or all of the charges, your decision will have no effect whatsoever on the outcome of the civil action __________ (name of victim) intends to bring against __________ (name of defendant).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Purdy, Milwaukee County Case No. F-932187 (1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
See also THE SHELLOW COLLECTION: Jurors Not To Consider Civil Litigation Against Corporation (29 USC 654).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 89: Drunk Driving.
See generally NCJIC Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. DUI With Injury: "Injury" vs. "Great Bodily Harm"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You will recall that, earlier in these instructions, I read the Information to you. That Information charged, in each count, the violation of two statutes. In each count, one of the statutes has as an element proof beyond a reasonable doubt that the defendant caused "injury;" the other statute in each of the counts requires proof beyond a reasonable doubt that the defendant caused "great bodily harm."
Although "injury" and "great bodily harm" are consequences which differ from each other, and are not the same, the state has chosen to allege both of them in each count.
You may infer from the fact that the state has alleged two different consequences in each count of the Information that the state recognizes its inability to prove either of the claimed consequences beyond a reasonable doubt.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms].
See generally NCJIC Chapter 89: Drunk Driving.
See NCJIC 253.4.12.1 [Definition Of Great Bodily Injury].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Uniform Standards For Administration Of Field Sobriety Tests: Jury May Consider Compliance With Standards
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have received evidence concerning uniform standards for the administration of field sobriety tests adopted by the National Highway Traffic Safety Administration. You may consider these standards and the extent to which the officer in this case complied with those standards in determining what weight, if any, to give to the field sobriety tests in this case.
SAMPLE INSTRUCTION # 2:
You have received evidence concerning uniform standards for the administration of field sobriety tests adopted by the National Highway Traffic Safety Administration and the ____________ (arresting agency e.g., Wisconsin State Patrol). You may consider these standards and the extent to which the officers in this case complied with those standards in determining what weight, if any, to give to the field sobriety tests in this case.
SAMPLE INSTRUCTION # 3:
Employees of law enforcement agencies in the administration of field tests for sobriety may be required to follow procedures in training manuals. If employees do not follow the procedures in those manuals, you may take this into consideration in determining how much weight, if any, to give to their testimony concerning such field tests.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See NCJIC 36.1.5 [Failure To Investigate, Conduct Tests Or Follow Police Procedures].
See generally NCJIC: Chapter 89: Drunk Driving.
See also NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Field Sobriety Tests: Jury May Consider Not Only The Presence Of Symptoms of Intoxication, But Also The Absence Of Such Symptoms
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence from police officers concerning their observations of __________ (name of defendant) at the time of (his/her) arrest. In determining what weight to give to these observations, you should consider not only the presence of symptoms of intoxication, but also the absence of such symptoms.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3.3 [Drunk Driving: Odor Of Alcohol On Defendant’s Breath Not Sufficient].
See NCJIC 89.3.9 [Drunk Driving: Intoxication Requires More Than Being Under The Influence Of Alcohol].
See NCJIC 89.4 [Drunk Driving: Miscellaneous Defenses And Defense Theories].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Jury May Accept Defendant’s Explanation For Performance On Field Sobriety Tests And May Disregard Results Of Test
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you find that __________’s (name of defendant) performance on the field sobriety tests can be explained by (his/her) __________ (insert defense theory e.g., inhalation of volatile chemicals, physical disabilities), you are free to disregard completely the results of the field sobriety tests.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.4 [Drunk Driving: Miscellaneous Defenses And Defense Theories].
See NCJIC 250.2.4 [Court's Duty To Instruct Regarding Defense Theory: Jury Not Required To Completely Accept Either Theory Of The Case].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Defense Theory That Chemicals Inhaled By Defendant Affected Intoxilyzer Test
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________’s (name of defendant) theory of defense to the charge that (he/she) operated a motor vehicle with a prohibited alcohol concentration is that (his/her) Intoxilyzer 5000 test results were inaccurate and that chemicals that __________ (name of defendant) inhaled affected the Intoxilyzer. If you find that __________ (name of defendant) inhaled these chemicals, then the prosecution must prove by evidence that is clear, satisfactory, and convincing that these other chemicals could not have affected the Intoxilyzer. If the prosecution has not proven the reliability of the Intoxilyzer test results in this case by evidence that is clear, satisfactory and convincing, you must find __________ (name of defendant) not guilty of operating a motor vehicle with a prohibited alcohol concentration.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.4 [Drunk Driving: Miscellaneous Defenses And Defense Theories].
See NCJIC 89.5.17 [Drunk Driving (DUI): Breathalyzer Gender Bias].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Jury May Consider Training Manuals For Intoxilyzer
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Portions of the __________ (name of manual(s) e.g., Basic Training Program for Breath Examiner Specialist and Improved Sobriety Testing) have been received in evidence and may be considered in arriving at a verdict.
AUTHORITY:
Lievrouw v. Roth, 157 Wis. 2d 332, 459 N.W.2d 850, 858 (Ct. App. 1990).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Horizontal Gaze Nystagmus Test: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining what weight, if any, to give to the testimony of __________ (name of law enforcement officer) concerning the significance of (his/her) observations during the horizontal gaze nystagmus test and the conclusions which (he/she) drew from these observations, you should consider the following:
(1)To what extent did this witness or any other witness testify to the scientific principles upon which the validity of this test rests;
(2)To what extent did this witness or any witness testify to the error rate produced by this test among the population of which __________ (name of defendant) is a member;
(3)To what extent did this witness or any witness testify to the acceptance of this test in the scientific community as a test for the presence of alcohol in a person's blood;
(4)To what extent did this witness or any witness testify to the underlying data upon which the validity of this test is predicated;
(5)To what extent did this witness or any witness testify to the variability of the results of this test procedure.
Each of these factors may be considered by you in determining how much weight to give to the testimony of __________ (name of law enforcement officer) concerning the conclusions she drew from the horizontal gaze nystagmus test.
AUTHORITY:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.5.16 [Drunk Driving: Expert Witness On HGN Test -- Psychologist vs. Medical Doctor].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jury Must Be Convinced That Defendant Consumed Enough Alcohol To Have Prohibited Alcohol Concentration Or Be under the Influence Of Alcohol At Time Of Driving
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
__________’s (name of defendant) position is that (he/she) did not consume enough alcohol to have a prohibited alcohol concentration or to be under the influence of alcohol at the time of the accident. Unless you find that the state has proven by evidence that is clear, satisfactory and convincing that __________ (name of defendant) consumed enough alcohol to have a prohibited alcohol concentration or to be under the influence of alcohol at the time (he/she) was driving, you must find (him/her) not guilty of the charges.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Defense Theory That Other Vehicles Collided Before Defendant Arrived
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
It is the defendant's position that the _________ (vehicle # 1) and _________ (vehicle # 2) collided before these vehicles were struck by the defendant's car and that the alcohol consumed by the defendant did not impair (his/her) ability to drive nor was (his/her) blood alcohol level above ________ (DUI percentage e.g., .10) at the time of the accident.
If the evidence you have heard in support of the defendant's position creates in your mind a reasonable doubt of (his/her) guilt, then you must acquit (him/her).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Jury Not To Consider Evidence Of Drinking As Evidence Of Negligence Or Recklessness
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION
In considering whether the defendant's conduct in operating the vehicle created an unreasonable and substantial risk of death or great bodily harm, you are not to consider (his/her) drinking of intoxicants before the accident as evidence of negligence or recklessness. The law recognizes that even intoxicated persons may operate a vehicle without doing so in a negligent manner or a manner that creates an unreasonable and substantial risk of death or great bodily harm. A person who voluntarily consumes intoxicants must use the same degree of care in the operation of a vehicle as one who has not consumed intoxicants –– no more, no less.
AUTHORITY:
State v. Wolske, 143 Wis. 2d 175, 420 N.W.2d 60, 62 (Ct. App. 1988).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 52: Criminal Negligence.
See NCJIC Chapter 53: Ordinary Negligence And Recklessness.
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 92.5.2.2 [Vehicular Manslaughter -- Violation Of Basic Speed Law Not Inherently Dangerous].
See NCJIC 92.5.2.3 [Equating Violation Of Speed Law With Inherent Dangerousness Is Improper Mandatory Presumption].
See NCJIC 92.5.2.7 [Vehicular Manslaughter: Intoxication As Proof Of Gross Negligence].
See NCJIC 92.5.3.1 [Vehicular Manslaughter: Defense Theory That Careless Driving Is Insufficient].
See NCJIC 92.5.3.2 [Defense Theory That Gross Negligence Requires More Than Violation Of A Traffic Law].
See NCJIC 92.5.3.3 [Vehicular Manslaughter: Defense Theory That Imminent Peril Affects The Standard Of Care Which The Defendant Must Exercise].