WPI 16.04 Under the Influence of Alcohol or Any Drug—Definition

Use with WPI 16.03 (Intoxication of Person Injured or Killed—Defense).

This instruction and WPI 16.05 (Under the Influence of Alcohol—Analysis of Bodily Substance—Intoxication Defense Statute) represent alternative theories for proving a person was under the influence of alcohol or drugs. For a case in which evidence is presented under each theory, then both instructions should be given to the jury with appropriate modification to indicate that the two theories are alternatives.

If the allegedly intoxicated person was driving a motor vehicle at the time of injury or death use WPI 16.04.01 (Under the Influence of Alcohol or Any Drug—Driving a Motor Vehicle) instead of this instruction.

If the case involves both an allegedly intoxicated driver and an allegedly intoxicated non-driver, use this instruction and WPI 16.04.01 (Under the Influence of Alcohol or Any Drug—Driving a Motor Vehicle), with appropriate modifications to identify the claims to which each instruction applies.

Use with WPI 21.09 (Burden of Proof on the Issues—Intoxication Defense).

Use bracketed “marijuana” if the court determines that it should be used rather than or in addition to “any drug.” See Comment to WPI 16.03 (Intoxication of Person Injured or Killed—Defense.)

Use bracketed material as applicable.

RCW 5.40.060(1).

The statute provides in part that the standard for determining whether the person injured or killed was under the influence of intoxicating liquor or any drug is the same standard set forth in RCW 46.61.502, the statute on driving while under the influence. Prior to 2013, RCW 46.61.502 provided that a person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a motor vehicle within this state while the person is either under the influence of or affected by intoxicating liquor or any drug or under the combined influence of or affected by any intoxicating liquor and any drug. In 2013, RCW 46.61.502 was amended to add “marijuana” to this list. RCW 5.40.060 was not amended similarly.

Case law interpreting the phrase “under the influence” has defined it as meaning “any influence which lessens in any appreciable degree the ability of the accused to handle his automobile.” State v. Hurd, 5 Wn.2d 308, 315, 105 P.2d 59 (1940); State v. Lewellyn, 78 Wn.App. 788, 794, 895 P.2d 418 (1995); State v. Hansen, 15 Wn.App. 95, 96, 546 P.2d 1242 (1976). This definition has been adapted for this instruction which is intended to be used in the case of a person injured or killed while engaged in an activity other than driving.

Experience with WPIC 92.10 (Under the Influence of or Affected by Intoxicating Liquor or Marijuana or Drugs—Definition),the criminal counterpart to this instruction, has shown that the jury may have trouble understanding the word “appreciable.” Therefore, it may be desirable when giving this instruction to further instruct the jury that the word “appreciable” is defined as meaning capable of being perceived or noticed. See W. Statsky, Legal Thesaurus/Dictionary (1985).