State v. Hardy

276 N.E.2d 247, 28 Ohio St. 2d 89, 57 Ohio Op. 2d 284, 1971 Ohio LEXIS 407

Opinions

Duncan, J.

We forego comparison of Toledo v. Starks, supra, and the case at bar to discern whether they conflict, but it is apparent that there exists a general similarity of the problem in both cases regarding the jury instructions on driving while under the influence of alcohol. We are called upon to determine whether the trial judge, in instructing a jury, committed error prejudicial to the defendant.

In the instant case, we believe the trial court’s charge to be erroneous and prejudicial to the defendant for the reasons appearing hereinafter.

The trial judge in instructing the jury made two statements concerning the meaning of the words “under the influence of alcohol, ’ ’ the first of which is as follows:

“* * * Under the influence of alcohol covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in the consumption of alcohol and which tends to deprive the one so using it of the clearness of intellect and control of himself which he would otherwise possess. No matter what stage of intoxication a person may be in, if he drives a vehicle upon the public road, he becomes a menace to the public and subjects himself to the penalties of the statute.”

In our view the above-quoted part of the charge is not erroneous. However, the court charged further, in part:

“* * * Now further in connection with the charge against the defendant, I believe that it is only proper that the court define to you what is meant by being under the influence of alcohol, the language of the statute that I read to you. In that connection, let me say the expression ‘under the influence of alcohol’ means exactly what it says and that is that some alcohol must have been drunk by the person, the amount being immaterial, but the effect of which caused some influence on that person at the time and place alleged in the affidavit. That is a very short definition, but very expressive and very definite.”

Appellant contends, and we agree, that this part of the trial court’s instruction is erroneous.

In instructing a jury concerning the statutory meaning of “under the influence of alcohol” it is not sufficient to charge a jury that the alcohol drunk by the defendant need have caused only some influence on him. Such a charge would include and make actionable such influences as the miniscule alteration of an accused’s heart beat, breathing rate, perspiration, salivation—or even humor and good spirits. None of those, alone, would necessarily indicate a state of intoxication, or necessarily adversely affect a person’s physical or mental capabilities. A conviction satisfying such a vague standard would only have a remote relationship to the intended purpose of the statute, which we believe was enacted to protect persons and property from drivers whose physical and mental ability to act and react are altered from the normal because of the consumption of alcohol. A criminal statute must be applied so as to have a reasonable relationship to its purpose in order to fit within constitutional requirements of due process of law.

Footnotes

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The part of the trial court’s charge, that the alcohol consumed must “have some influence on the person at the time and place alleged in the affidavit” (emphasis supplied), ignores the essential requirement that the “influ ence” effect some deprivation of clearness of intellect and control which one would otherwise possess.

Appellant contends that the infirmity of the court’s charge, as discussed above, is incurable even by the inclusion of what he regards as the proper definitive language of “under the influence of alcohol,” used in State v. Steele (1952), 95 Ohio App. 107; citing the holding in Toledo v. Starks (1971), 25 Ohio App. 2d 162.

In determining the question of prejudicial error in instructions to the jury, the charge must be taken as a whole, and the portion that is claimed to be erroneous or incomplete must be considered in its relation to, and as it affects and is affected by the other parts of the charge. If from the entire charge it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error results. See State v. Porter (1968), 14 Ohio St. 2d 10; Centrello v. Basky (1955), 164 Ohio St. 41.

After analysis of the entire charge, which includes consideration of any remedial impact the nonerroneous part might have upon the erroneous, we are convinced that the erroneous language used in the latter part of the charge highlights and emphasizes the erroneous to such an extent that the total charge visits prejudice on the defendant.

In the present case, the trial court read to the jury the erroneous poorly worded definition of “under the influence of alcohol” which had its apparent genesis in Masoncup v. State (1933), 47 Ohio App. 32. That definition contains two sentences which could reasonable be expected to lead a jury to believe that this portion of the charge was the controlling definition of “under the influence of alcohol.” It must be remembered that when originally given to the jury in Masoncup, this was the only instruction given as to the definition of being under the influence of alcohol. In our view, both the first and last sentences of the erroneous part of the charge, as quoted, imply that this part of the charge contains the sole definition of being under the influence. The first sentence of this disputed statement is, in part: “I believe it is only proper that the court define to you what is meant by being under the influence of alcohol.” The word “define” connotes that which follows will be, unlike the language that preceded, the definitive statement of being “under the influence of alcohol.” Moreover, the preceding (nonerroneous) part of the instruction uses no such clear language as “define,” but instead generally states what “under the influence of alcohol” covers. “Define,” being the stronger of the two terms, could reasonably lead a jury to believe that the second part contains the precise and controlling instruction.

The second unfortunate carry-over of the Masoncup language involves the entire last sentence: ‘ ‘ That is a very short definition, but very expressive and very definite.” Coupled with the similar inference created by the first sentence, the resultant impression is that the erroneous (Masoncup) language was the definitive statement of the law.

Stated differently, the nonerroneous part of the charge is stated less prominently and clearly than the erroneous, and the correct instruction appears to be a general statement while the erroneous part of the charge appears as a specific, controlling definition of “under the influence of alcohol.” See Marcoguiseppe v. State (1926), 114 Ohio St. 299, 301; Montanari v. Haworth (1923), 108 Ohio St. 8, 13; Pittsburgh, Cincinnati and St. Louis Ry. Co. v. Krouse (1876), 30 Ohio St. 222; Pendleton Street Rd. Co. v. Stallmann (1871), 22 Ohio St. 1.

Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Municipal Court for further proceedings according to law.

Judgment reversed.

Schneider, Corrigan and Stern, JJ., concur. O’Neill, C. J., Herbert and Leach, JJ., dissent.

Fifth and Fourteenth Amendments to the Constitution of the United States; Section 16, Article I of the Constitution of Ohio.