State v. King

834 P.2d 463, 114 Or. App. 32, 1992 Ore. App. LEXIS 1414

• Court: Court of Appeals of Oregon
• Decided: July 8, 1992
• Docket: 90-61827; CA A69804
• Status: Published

Opinions

RICHARDSON, P. J.

Defendant appeals his conviction, in a trial to a jury, of driving under the influence of intoxicants (DUII). ORS 813.010. He contends that the court erred by refusing to give his requested instructions. We affirm.

ORS 813.010 provides:

“(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

“(a) Has .08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;

“(b) Is under the influence of intoxicating liquor or a controlled substance; or

“(c) Is under the influence of intoxicating liquor and a controlled substance.”

The state offered evidence that defendant took an Intoxilyzer test and that the result was a .11 percent blood alcohol reading. It also introduced testimony from the arresting officer that defendant was perceptibly under the influence of intoxicants and a videotape showing defendant’s action at the time he was arrested. Defendant produced evidence to refute the Intoxilyzer reading and the state’s evidence. He argues that subsections (a) and (b) of the statute are two separate theories for proving the offense and that all of the jurors must agree on one or both theories. Defendant requested an instruction to that effect:

“I instruct you that all of you must agree on the manner or theory of the state in which the crime of Driving Under The Influence was committed, that is, your verdict must be unanimous to convict the Defendant of the crime charged and your verdict must be unanimous as to the theory, that is, was the Defendant driving while under the influence as I have previously instructed you, or did Defendant have a blood alcohol content greater than .08 percent by weight of alcohol at the time he was driving a vehicle.”

The court declined to give the instruction, and defendant contends that that was error.

Defendant’s argument is premised on State v. Boots, 308 Or 371, 780 P2d 725 (1989), where the defendant was charged with aggravated murder, which is murder that was committed under at least one of 17 different circumstances. ORS 163.095. The state had alleged two of the aggravating factors. The trial court had instructed the jury that it was not necessary for all jurors to agree on the circumstances in which the murder was committed. The Supreme Court held that the instruction was erroneous, because it would allow a jury to convict with less than unanimous agreement as to which particular predicate acts defendant committed.

Defendant analogizes the DUII statute to the aggravated murder statute. The conceptual similarity, he says, is that the DUII statute defines a single crime through a list of alternative predicate acts that establish it. DUII is established, he argues, when either or both of two distinct acts are proven: defendant drove while having .08 percent or more of alcohol in his blood or while under the influence of liquor, a controlled substance or both. The analogy is complete, he argues, because, unless the jurors all agree on at least one of the state’s theories, on the basis of proof of one of the required predicate acts, defendant is not guilty.

The argument does not gain merit simply by characterizing the parts of the DUII statute in the same way that the court in Boots described the elements of aggravated murder. The structure of the DUII statute is fundamentally different from that of the murder and aggravated murder statutes. Each aggravating element that can elevate murder to aggravated murder is discrete, and proof of one of the 17 elements does not constitute proof of any other; there is no overlap. By contrast, the parts of the DUII statutes, identified by defendant as elements or factual predicates, are merely ways to prove the single fact that defendant was under the influence of intoxicants. The parts are ways of proving the single predicate fact — being under the influence of intoxicants.

ORS 813.300 describes how the blood alcohol reading can be used as evidence. Subsection (2) provides:

“Not less than .08 percent by weight of alcohol in a person’s blood constitutes being under the influence of intoxicating liquor.”

The blood alcohol reading is, thus, not an essential fact or element of the crime that must be proven, but evidence that goes to establish an element. In addition to a blood alcohol reading, there may be a variety of evidence relevant to whether a defendant was under the influence. For example, the arresting officer may describe performance of a “field sobriety test,” ORS 813.135, or provide a videotape of the defendant’s actions. Another witness may testify about the amount of intoxicants that the defendant consumed, and another may testify that the defendant admitted being drunk. Additionally, a defendant may have taken a chemical test, as provided in ORS 813.140 or ORS 813.150. It is not necessary that the jurors all agree on one body of evidence or the credibility of a witness in order to agree unanimously that a defendant was under the influence of intoxicants. In other words, it is not necessary that the jurors agree on a particular interpretation of the evidence offered to prove a single fact. The court did not err in refusing defendant’s requested instruction.

Defendant also requested that the court instruct the jury:

“You may consider evidence of the presence or absence of observable symptoms of intoxication in determining the accuracy of the breath test evidence.

“It is up to you to determine what weight you will give to the breath test evidence. You are not required to accept such evidence. You should give the breath test evidence such weight as you feel is appropriate in reaching your verdict.”

Defendant contends that it was error for the court to refuse the instruction because, without it, the jury could conclude that an Intoxilyzer reading of .11 created a presumption of guilt. He presented considerable expert evidence that challenged the accuracy of the Intoxilyzer reading. The court instructed the jury that, if it found beyond a reasonable doubt that defendant’s blood alcohol level was .08 percent or greater, that constituted being under the influence of intoxicants. See ORS 813.300. Defendant argues that the instruction essentially told the jury that, if the Intoxilyzer test result was .08 or greater, then defendant was guilty.

The question of the accuracy of the blood alcohol test was earnestly litigated. Both parties presented evidence and argument about what defendant’s blood alcohol content may have been. The court’s instructions told the jury that it was to decide what defendant’s blood alcohol level was. The instruction told the jury the significance of blood alcohol content if the jury believed the evidence, as required by ORS 813.300. Defendant’s requested instruction focused on certain types of evidence that could affect the accuracy of the Intoxilyzer test and was a comment on the probative value of that evidence. The court did not err by refusing the instruction.

Affirmed.