State v. Avila

• Decision Date: 16 March 2022
• Docket Number: A167346
• Citation: 318 Or.App. 284,507 P.3d 704
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jose Antonio AVILA, aka Antonio Avila, Defendant-Appellant.
• Court: Oregon Court of Appeals

318 Or.App. 284

507 P.3d 704

STATE of Oregon, Plaintiff-Respondent,

v.Jose Antonio AVILA, aka Antonio Avila, Defendant-Appellant.

A167346

Court of Appeals of Oregon.

Argued and submitted December 20, 2019.

March 16, 2022

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

JAMES, J.

This case involves the giving of what is known as the " Miles instruction," which tells the jury in a DUII case that a defendant whose "physical condition" makes that defendant "more susceptible to the influence of intoxicants" and who becomes "under the influence by a lesser quantity of intoxicants than it would otherwise take," is nevertheless under the influence of intoxicants. UCrJI 2708; State v. Miles , 8 Or. App. 189, 196-97, 492 P.2d 497 (1972) (the genesis of the instruction in Oregon). The history of the Miles instruction, which is entirely a product of our case law, without comment by the Oregon Supreme Court, is a cautionary tale regarding the crafting of jury instructions, and it exemplifies the problems that ensue when instructions are crafted from short snippets of court opinions. As discussed below, the phrase "physical condition," as it appears in the Miles instruction, was drawn from a Texas case from the late 1930s that involved the combined effects of drugs and alcohol; and for the past half century, it has spawned uncertainty about the proper scope of the Miles instruction—specifically, whether it applies to a "physical condition" beyond one created by drugs or medications that make a defendant more susceptible to the influence of alcohol.

In this case, the instruction was given because defendant has muscular dystrophy, which the state argues is a physical condition that made him more susceptible to the effects of alcohol. As explained below, we have grave doubts as to whether a Miles instruction is ever appropriate outside the context of drugs or medications that make the defendant more susceptible to the effects of alcohol; but, in any event, the trial court erred in giving the instruction in this case, because there was no evidence that defendant's muscular dystrophy actually made him any more susceptible to the influence of alcohol than someone without that condition. We therefore reverse and remand.

Because our disposition turns on defendant's claim of instructional error, we confine our discussion to the factual and procedural history bearing on that issue.¹ Defendant was charged with one count of driving under the influence of intoxicants and one count of reckless driving (also on the theory that he drove while intoxicated).² At trial, defendant testified that he had muscular dystrophy and asthma. He testified that muscular dystrophy affects his movements, balance, and breathing, and that it has caused him to fall and makes it difficult to grasp things with his hands. According to defendant, his symptoms first appeared when he was 15 or 16 years old and have advanced over time. He argued that the symptoms he exhibited when pulled over were caused by muscular dystrophy, not the beers he had consumed.

Defendant also called a physician, Dr. Fahey, to testify about the effects of muscular dystrophy. Fahey testified that muscular dystrophy is a genetic disease that causes muscles to become weak and "not work correctly." Fahey testified that it can affect walking, coordination, and the ability to perform basic tasks.

On cross-examination, the state elicited testimony about the effects of alcohol on someone with muscular dystrophy. The prosecutor and Fahey had the following exchanges:

"Q. Okay. So would somebody with muscular dystrophy, would it be—would the consumption of alcohol have a worsening or positive [e]ffect on their motor skills?

"A. It would be a worsening on their motor skills.

"Q. Okay. And could someone with muscular dystrophy have a worsening of their general motor skills as compared to someone without muscular dystrophy with a lesser amount of alcohol ?

"A. I think the impairment and the neurological part would be the same. It would impair someone without. Itwould impair somebody with. I think if you already have muscular dystrophy, it's an additive effect.

"Q. Okay. So when you say impairment would be the same, in other words, the body would process—I guess I don't understand. You say that there would be an additive effect. What I'm really trying to ask here, and perhaps I'm not asking this with clarity, but if someone without muscular dystrophy consumes alcohol, is there going to be a greater diminished motor skill [e]ffect as compared to someone who has muscular dystrophy ?

"A. Mm-hmm.

"Q. In other words, is the person with muscular dystrophy and they're consuming alcohol going to have an even greater lack of motor skill ability?

"A. I don't—okay. I think—what I was trying to say is additive, because it affects the neurological part, where the muscular dystrophy is at the muscle. So the muscle—the neuromuscular junction doesn't—isn't changed any way by alcohol, but the neurological part is. And it's across the board, you would have that neurological effect.

"Now, could that be additive, yes. To the—you add the neurological component to the neuromuscular junction, then you have additive effect. Does that make sense?

"*****

"Q. Someone without muscular dystrophy driving a vehicle without alcohol as the standard. Is a person with muscular dystrophy who is driving a vehicle with the weakening of the muscles, is that person's ability to drive a vehicle using motor skills going to be rate—affected to a greater degree with the use of alcohol as compared to someone without muscular dystrophy ?

"A. I—yeah. I—it will affect them just like it affects a person without muscular dystrophy. I think if you have the neurological coordination problem with the already preexisting muscular dystrophy problem, then you have an additive effect . That's what I'm trying to say.

"*****

"Q. So is there a difference between alcohol consumption and motor skill use with someone without muscular dystrophy in the same persona with muscular dystrophy ?

"A. Yeah. I—it adversely affects both, and if you're already having a hard time, that would make it even harder time . And that makes—

"Q. Okay. And a harder time, you're referring to motor skills?

"A. Yes."

(Emphases added.)

Based on defendant's and Fahey's testimony, the state requested UCrJI 2708, the Miles instruction. That instruction states:

"If you find from the evidence that the defendant was in such a physical condition, that the defendant was more susceptible to the influence of intoxicants than he otherwise would be, and as a result of that physical condition, the defendant became under the influence by a lesser quantity of intoxicants than it otherwise would take, the defendant is nevertheless under the influence of intoxicants."

The prosecutor explained that his understanding of Fahey's testimony was that "there was an additive effect of the alcohol to someone with muscular dystrophy," and that Fahey had said that "someone with muscular dystrophy with—I think he said with problems or with those issues, referring to motor skills, would be greater affected by the alcohol. And that was in response to my question about the amount of alcohol, the lesser quantity."

Defendant objected to the instruction, explaining that his understanding was that the Miles instruction ordinarily applied in cases "where someone who has taken a certain medication is more susceptible to alcohol because that affects the same system of the body as does the alcohol." And, defendant argued, Fahey had not testified that alcohol affects a person with muscular dystrophy any differently. Rather, Fahey had testified "that alcohol affects an entirely different system of the body than he was referring to the neuromuscular versus the neurological—and that—so a person wouldn't be any more susceptible to the influence of alcohol itself."

The trial court gave this instruction, explaining: "We have the statements of his medical condition from himself. And then we have the doctor's testimony regarding the additive effects of alcohol upon muscular dystrophy, which is what the defendant describes himself as having." Thus, the court concluded that the Miles instruction was appropriate, and it delivered the instruction to the jury. Defendant was found guilty of DUII and reckless driving.

On appeal, defendant argues that the trial court erred in giving the Miles instruction in the context of a permanent physical condition like muscular dystrophy, but that, in any event, the evidence did not show that muscular dystrophy made defendant any more susceptible to the influence of alcohol. Rather, defendant argues, the "additive effect" described by Fahey was that any impairment from alcohol would be added to defendant's existing impairment from muscular dystrophy. The state, in response, defends the giving of the instruction, arguing that a genetic disease can support the giving of a Miles instruction, and that "this case fits squarely within the parameters of the Miles instruction" in that "[t]he alcohol would be more impairing to someone with defendant's physical condition than it would be to someone without that condition, and therefore, the person may be impaired by a lesser quantity of the alcohol."

The accuracy of the trial court's instructions to the jury presents a question of law. State v. Guzek , 358 Or. 251, 277, 363 P.3d 480 (2015). "We review the instructions as a whole in determining whether a trial court erred by giving a particular instruction and whether the instruction accurately stated the law." Id. Generally speaking, a party "is entitled to a...