JURY INSTRUCTIONS
WPIC 92.01 Driving or Being in Physical Control While under the Influence--Definition
A person commits the crime of [driving] [or] [being in actual physical control while]under the influence when he or she [drives] [or] [has actual physical control of]a motor vehicle [while he or she is under the influence of or affected by [intoxicating liquor] [or] [any drug]] [or] [while he or she is under the combined influence of or affected by intoxicating liquor and any drug] [or][while he or she has sufficient alcohol in [his] [her]body to have an alcohol concentration of 0.08 or higher within two hours after [driving] [or] [being in actual physical control]as shown by an accurate and reliable test of the person's [breath] [blood]].
[The fact that a person is or has been entitled to use such drug under the laws of this state does not constitute a defense.]
Note on Use
Use this instruction if it will help the jury understand the charged offense or if it is necessary to define this particular offense for the jury. See the Comment to WPIC 4.24, Definition of the Crime--Form.
Use bracketed material as applicable. For directions on using bracketed phrases, see the Introduction to WPIC 4.20. Use the first paragraph's last phrase if any breath or blood test has been admitted.
Use WPIC 92.10, Under the Influence of or Affected by Intoxicating Liquor or Drugs--Definition, with this instruction. Use WPIC 92.16, Evaluation of Breath or Blood Test Results, when there is a challenge to the accuracy and reliability of the defendant's blood or breath test.
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WPIC 92.02 Driving or Being in Physical Control While under the Influence--Elements
To convict the defendant of [driving] [or] [being in actual physical control while]under the influence, each of the following three elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [drove] [or] [had actual physical control of]a motor vehicle;
(2) That the defendant at the time of [driving] [or] [being in actual physical control of]a motor vehicle
[(a) was under the influence of or affected by [intoxicating liquor] [or] [a drug];] [or]
[(b) was under the combined influence of or affected by intoxicating liquor and a drug;] [or]
[(c) had sufficient alcohol in [his] [her]body to have an alcohol concentration of 0.08 or higher within two hours after [driving] [or] [being in actual physical control]as shown by an accurate and reliable test of the defendant's [breath] [blood];] and
(3) That this act occurred in the [State of Washington] [City of ________ ] [County of ________ ].
If you find from the evidence that elements (1), (3), and any of the alternative elements [(2)(a),] [(2)(b),] or [(2)(c)] have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(2)(a),] [(2)(b),] or [(2)(c)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of elements (1), (2), or (3), then it will be your duty to return a verdict of not guilty.
Note on Use
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see the Introduction to WPIC 4.20 and the Note on Use and Comment to WPIC 4.23, Elements of the Crime--Alternative Elements--Alternative Means for Committing a Single Offense--Form. For the related jury interrogatory, see WPIC 190.09, Special Verdict Form--Elements with Alternatives. For any case in which substantial evidence supports only one of the alternatives in element (2), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21, Elements of the Crime--Form.
Use WPIC 92.16, Evaluation of Blood or Breath Test Results, when there is a challenge to the accuracy and reliability of the defendant's breath or blood test. See WPIC 92.15, Physical Control While Under the Influence--Defense--Safely off the Roadway, regarding the potential defense of the vehicle being safely off the roadway.
In element (3), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See the Introduction to WPIC 4.20. For a discussion of the phrase “this act” in element (3), see the Introduction to WPIC 4.20 and the Note on Use to WPIC 4.21, Elements of the Crime--Form.
If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See the Introduction to WPIC 4.20, and WPIC 190.10, Special Verdict Form--Jurisdiction.
Use WPIC 92.12, Driving or Being in Physical Control While Under the Influence--Alcohol Concentration--Definition, with this instruction.
If more than one RCW 46.61.502 or.504 statutory alternative means is submitted to the jury, practitioners may draft a jury interrogatory following the format set forth in WPIC 190.09, Special Verdict Form--Elements with Alternatives.
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WPIC 92.03 Driving or Being in Physical Control While under the Influence--Sentencing--Jury Interrogatory
(Insert caption.)
This special verdict is to be answered only if the jury finds the defendant guilty of [driving under the influence] [physical control while under the influence] as charged in Count [ ].
We, the jury, answer the questions submitted by the court as follows:
[QUESTION [1]: Did the defendant have sufficient alcohol in his or her body to have an alcohol concentration of 0.15 or higher within two hours after driving as shown by an accurate and reliable test of the defendant's [breath] [blood]?]
ANSWER: ________ (Write “yes” or “no”)
[QUESTION [2]: Did the defendant refuse to submit to a test of [his] [her] [breath] [blood] which was requested by a law enforcement officer for the purpose of determining the [alcohol concentration] [drug content] of the defendant's [breath] [blood]?]
ANSWER: ________ (Write “yes” or “no”)
[QUESTION [3]: Did the defendant commit the crime of [driving] [physical control while] under the influence while a passenger under the age of sixteen was in the vehicle?]
ANSWER: ________ (Write “yes” or “no”)
(DIRECTION: Sign this verdict form and notify the bailiff.)
DATE: _______________
______________________________
Presiding Juror
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WPIC 92.04 Operating or Being in Physical Control of A Motor Vehicle after Consuming Alcohol--Under the Age of Twenty-One--Definition
A person under the age of twenty-one commits the crime of [operating] [being in physical control of]a motor vehicle after having consumed alcohol when he or she [operates] [is in physical control of]a motor vehicle, and at that time had sufficient alcohol in his or her body to have an alcohol concentration of at least 0.02 [and less than 0.08]within two hours after [operating] [being in physical control of]a motor vehicle as shown by an accurate and reliable test of the person's [breath] [blood].
Note on Use
Use this instruction if it will help the jury understand the charged offense or if it is necessary to define this particular offense for the jury. See the Comment to WPIC 4.24, Definition of the Crime--Form.
Use the bracketed phrase referring to 0.08 if there is a separate charge of DUI or physical control. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
Use WPIC 92.10 (Under the Influence of or Affected by Intoxicating Liquor or Drugs--Definition) and WPIC 92.12 (Driving or Being in Physical Control While Under the Influence--Alcohol Concentration--Definition) with this instruction. Use WPIC 92.16, Evaluation of Blood or Breath Test Results, when there is a challenge to the accuracy and reliability of the defendant's breath or blood test.
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WPIC 92.05 Operating or Being in Physical Control of A Motor Vehicle after Consuming Alcohol--Under the Age of Twenty-One--Elements
To convict the defendant of [operating] [being in physical control of]a motor vehicle after having consumed alcohol, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant was under twenty-one years of age;
(2) That the defendant [operated] [was in physical control of]a motor vehicle;
(3) That the defendant, at the time of [operating] [physical control of]the motor vehicle, had sufficient alcohol in his or her body to have an alcohol concentration of at least 0.02 [and less than 0.08]within two hours after [operating] [physical control of]the motor vehicle as shown by an accurate and reliable test of the defendant's breath or blood;
(4) That this act occurred in the [State of Washington] [City of ________ ] [County of ________ ].
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Note on Use
In element (4), choose from among the bracketed phrases depending on whether the case is being heard in superior, municipal, or district court. See the Introduction to WPIC 4.20. For a discussion of the phrase “this act” in element (4), see the Introduction to WPIC 4.20 and the Note on Use to WPIC 4.21, Elements of the Crime--Form.
If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See the Introduction to WPIC 4.20, and WPIC 190.10, Special Verdict Form--Jurisdiction.
Use bracketed material as applicable. Use the bracketed phrase referring to 0.08 if there is a second charge of DUI and evidence to support it. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
Along with this instruction, use WPIC 92.10 (Under the Influence of or Affected by Intoxicating Liquor or Drugs--Definition) and WPIC 92.12 (Driving or Being in Physical Control While Under the Influence--Alcohol Concentration--Definition).
Use WPIC 92.16, Evaluation of Blood or Breath Test Results, when there is a challenge to the accuracy and reliability of the defendant's breath or blood test. See WPIC 92.14 and its Comment if the defendant raises an issue about drinking after driving.
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WPIC 92.10 Under the Influence of or Affected by Intoxicating Liquor or Drugs--Definition
A person is under the influence of or affected by the use of [intoxicating liquor] [or] [drugs]if the person's ability to drive a motor vehicle is lessened in any appreciable degree.
[It is not unlawful for a person to consume [intoxicating liquor] [or] [drugs]and drive a motor vehicle. The law recognizes that a person may have consumed [intoxicating liquor] [or] [drugs]and yet not be under the influence of it.]
Note on Use
Use this instruction whenever the DUI or physical control alternative means of under the influence of or affected by is submitted to a jury.
Use the bracketed second paragraph if it will assist the jury. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
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WPIC 92.12 Driving or Being in Physical Control While under the Influence--Alcohol Concentration--Definition
Alcohol concentration means [grams of alcohol per 210 liters of a person's breath] [or] [grams of alcohol per 100 milliliters of a person's blood].
Note on Use
Use this instruction with WPIC 92.02 (Driving or Being in Physical Control While Under the Influence--Elements), or with WPIC 92.05 (Operating A Motor Vehicle After Consuming Alcohol While Under the Age of Twenty-One--Elements).
Use the alternative bracketed phrases as appropriate. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
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WPIC 92.13 Breath or Blood Test Refusal--Definition
A person refuses a law enforcement officer's request to submit to a test to determine the person's [[breath] [blood]alcohol concentration] [blood drug content]when the person shows or expresses a positive unwillingness to do the request or to comply with the request.
Note on Use
Use this instruction if the prosecution chooses to submit to the jury the RCW 46.61.5055 mandatory sentence enhancement of breath or blood test refusal, WPIC 92.03, Driving or Being in Physical Control While Under the Influence--Sentencing--Jury Interrogatory.
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WPIC 92.14 Driving or Being in Physical Control While under the Influence--Defense--Drinking after Driving
It is a defense to [driving under the influence] [physical control while under the influence] [as charged in Count _____ ]that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of a test of the defendant's [breath] [blood]to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving.
The prosecution has the burden of proving beyond a reasonable doubt that [either:]
[(1)] [The defendant did not consume alcohol after driving;] [or]
[(2)] [The quantity of alcohol the defendant consumed after the time of driving and before the administration of a test of the defendant's [breath] [blood]did not cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving.]
If, after weighing all of the evidence, you have a reasonable doubt as to whether the prosecution has met its burden of proof as to this defense, then it will be your duty to return a verdict of not guilty.
Note on Use
Use this instruction when the defense of the defendant's consuming alcohol after the time of driving or physical control and before the administration of a breath or blood test is an issue supported by the evidence. See RCW 46.61.502(3), 46.61.504(3). The instruction applies only if the per se (.08) prong is at issue.
Use both of the alternative elements only if each is supported by sufficient evidence. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
Modify the instruction when this defense is raised in a case involving minor DUI (RCW 46.61.503, Driver Under Twenty-One Consuming Alcohol--Penalties).
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WPIC 92.15 Physical Control while under the Influence--Defense--Safely Off the Roadway
It is a defense to physical control while under the influence if, prior to being pursued by a law enforcement officer, the person causes the vehicle to be moved safely off the roadway.
In determining whether a vehicle is safely off the roadway, you may consider the location of the car, the extent to which the defendant maintained control over the vehicle, and any other evidence bearing on the question.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.
Note on Use
Use this instruction when the defense of safely off the roadway is before the jury. If there is a dispute as to whether the vehicle is within the roadway, then a definition of “roadway” may be added based on RCW 46.04.500 or other applicable law.
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WPIC 92.16 Evaluation of Blood or Breath Test Results
In determining the accuracy and reliability of a [breath] [blood]test, you may consider the testing procedures used, the reliability and functioning of a testing instrument, maintenance procedures applied to a testing instrument, and any other factors that bear on the accuracy and reliability of the test.
Note on Use
Use this instruction when there is a challenge to the accuracy and reliability of the defendant's breath or blood test. For directions on using bracketed phrases, see the Introduction to WPIC 4.20.
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