State v. Andrus, 17968
| Citation | 118 Idaho 711,800 P.2d 107 |
| Decision Date | 21 March 1990 |
| Docket Number | No. 17968,17968 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Dave B. ANDRUS, Defendant-Appellant. |
| Court | Court of Appeals of Idaho |
The Court's prior opinion, dated February 26, 1990, is hereby withdrawn.
Dave Andrus was charged with driving under the influence of alcohol, tried before a jury in magistrate court, and convicted. He appealed to the district court, where the judgment of conviction was affirmed. He now appeals to this court. We conclude that the jury was incorrectly instructed and remand for new trial.
The issues raised on appeal turn on questions of law, the parties having stipulated to the necessary procedural facts. Andrus was arrested by the Idaho State Police on September 24, 1987, following an officer's observation of erratic driving, the administration of field sobriety tests, and the officer's conclusion that Andrus failed the tests. He refused a breath-alcohol test. The State proceeded on general proof that Andrus was "under the influence" of alcohol within the meaning of I.C. § 18-8004. The State's case consisted of testimony by the arresting officer and a tape recording made by the officer at the time of the arrest. Andrus testified that he had consumed only a limited amount of beer and was not under the influence. Several witnesses testified that they had observed Andrus, and did not believe he was under the influence. On this evidence, the jury returned a verdict of guilty.
Andrus raises two issues on appeal. First, despite his refusal to submit to a breath-alcohol test, he claims error in the failure to admit evidence offered to show that his alcohol concentration may have been less than .10%. Second, he claims error in the giving of inconsistent and contradictory instructions on the definition of driving under the influence. We find no error in the refusal to admit the proffered evidence on defendant's probable alcohol concentration. We do conclude, however, that the instructions given on the definition of driving under the influence were inconsistent and contradictory, necessitating a new trial.
We begin with the evidentiary issue. Andrus testified that he had consumed only four beers between the hours of 11:30 p.m. and 1:00 a.m. on the night in question. By way of offer of proof outside the presence of the jury, defense counsel advised the court that he wished to introduce a chart printed in the Idaho Driver's Manual which showed the theoretical level of alcohol in a person's system given various rates of consumption over various periods of time. He further advised that he wished to prove through testimony that, according to the chart, the consumption of four beers over two and one-half hours by a man of Andrus's height and weight would theoretically result in an alcohol content of less than .10%. The magistrate rejected the offer of proof.
We find no error. While I.C. § 18-8004 establishes only one crime of driving under the influence, it may be proved in either of two separate and distinct ways. It may be proved, as here, by the direct and circumstantial evidence of impairment of ability to drive due to the influence of alcohol. Alternatively, if chemical testing was performed in accordance with the statute, the crime may be proved by forensic evidence that the defendant's alcohol concentration exceeded the statutory percentage. State v. Knoll, 110 Idaho 678, 718 P.2d 589 (Ct.App.1986) (review denied). The statutory percentage is contained within the definition of the crime and is conclusive, not presumptive, of guilt; driving a vehicle while one has an alcohol concentration of .10% or more is deemed per se to be a violation of the law. Evidence relevant under the per se theory of proof is not necessarily relevant under the impairment theory.
Andrus acknowledges this, but argues that even though he had refused a breath-alcohol test and was being prosecuted under the impairment theory, he should have been allowed to offer evidence of his hypothetical alcohol concentration as relevant to the issue of whether he was under the influence. He further argues that the statute provides that if an individual submits to a chemical test, and if the test indicates an alcohol concentration of less than .10%, the state may not prosecute under either alternative. He contends that, even though he refused the test, he should have been permitted to offer proof to the jury that his alcohol concentration might have been less than .10%, thus preventing his conviction. We are not persuaded.
Evidence of scientific measurement of alcohol concentration is governed by statute. Such evidence must be in the form of an acceptable test of a subject's blood, breath or urine, conducted in accordance with standards then approved by the Department of Health & Welfare. 1 I.C. § 18-8004(4). There is no provision for extrapolating an individual's probable alcohol concentration by the use of charts or graphs such as that published in the Idaho Driver's Manual.
Idaho Code § 18-8004(2) provides as follows:
Any person having an alcohol concentration of less than 0.10 as defined in subsection (4) of this section, as shown by an analysis of his blood, urine, or breath, by a test requested by a police officer shall not be prosecuted for driving under the influence of alcohol....
This section only applies when the defendant has submitted to a chemical test for alcohol concentration; it has no application when the defendant has refused such test. If a defendant has refused the police request for an alcohol concentration test, and the state proceeds under general proof that he was impaired by the influence of alcohol, the defendant may not later attempt to establish by direct proof, expert testimony, hypothetical example or otherwise what his alcohol concentration was or could have been. The magistrate did not err in refusing the proffered evidence.
We now consider the jury instruction issue. The definition of "driving under the influence" has not been addressed by appellate courts in Idaho since State v. Warner, 97 Idaho 204, 541 P.2d 977 (1975). Since then, the statute has been amended in some respects, and we must decide whether Warner is still good law. We believe it is.
In Warner the Supreme Court noted that the inability to operate a motor vehicle with reasonable prudence due to the consumption of alcohol was the standard for determining whether a driver was under the influence in civil liability cases, but was not the criminal standard. The court ruled that the criminal standard was appropriately defined in State v. Glanzman, 69 Idaho 46, 202 P.2d 407 (1949), which approved an instruction containing substantially the same language as the first paragraph of Instruction No. 12 given by the trial court in this case, which reads:
You are instructed that to constitute the crime of driving while under the influence of alcohol, it is not necessary that the driver of a motor vehicle be shown to have been in any particular degree or state of intoxication, but only that such driver at the time charged has consumed alcohol to such an extent as to influence or affect his/her driving of the motor vehicle.
The court in Warner specifically disapproved of a contention that it was also necessary to show that the driver was unable to drive safely or prudently to sustain a conviction in a criminal case.
Andrus urges that Idaho should recognize the rationale of City of Helena v. Davis, 222 Mont. 492, 723 P.2d 224 (1986), which held that the crime requires a showing that the defendant was impaired to a degree that rendered him incapable of driving safely. However, in Montana this element is contained within the statute, which defines the offense as follows: "Under the influence means that as a result of taking into the body alcohol ... a person's ability to safely operate a motor vehicle has been diminished." M.C.A. § 61-8-401(3).
We recognize that most states require proof that the defendant's ability to drive safely was impaired. In Wisconsin, the language used is consumption to a degree that renders the driver "incapable of safely driving." State v. Waalen, 130 Wis.2d 18, 386 N.W.2d 47, 51 (1986). In Kansas, the standard is "to the extent that defendant was incapable of safely driving a vehicle." State v. Reeves, 233 Kan. 702, 664 P.2d 862, 864 (1983). In Illinois, the courts focus on the "impairment of the ability to act with care." People v. Frazier, 123 Ill.App.3d 563, 79 Ill.Dec. 27, 463 N.E.2d 165, 171 (1984). In Nevada, the standard is "to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle." Cotter v. State, 103 Nev. 303, 738 P.2d 506, 508 (1987). Colorado requires that the degree of influence be "substantial so as to render the defendant incapable of safely operating a vehicle." Barnes v. People, 735 P.2d 869, 871-72 n. 2 (Colo.1987). In Georgia, one is not under the influence of an intoxicant unless he or she is intoxicated "to a degree which renders [him] incapable of driving safely." Hogan v. State, 178 Ga.App. 534, 343 S.E.2d 770, 772 (1986). And in Massachusetts,
The Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely.
Commonwealth v. Connolly, 394 Mass. 169, 474 N.E.2d 1106, 1109 (1985) (emphasis original). The Massachusetts court found thirty-two states which defined the elements of the offense similarly. Id. 474 N.E.2d at 1110.
Nevertheless, this concept is not in accord with...
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