WPIC 92.02 Driving or Being in Physical Control While Under the Influence—Elements

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 WPIC 4.20 (Introduction) 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 affirmative 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 WPIC 4.20 (Introduction). For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) 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 WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).

Use WPIC 92.12 (Driving or Being in Physical Control While Under the Influence—Alcohol or THC Concentration—Definition) with this instruction. Do not use the THC definition only for offenses that occurred before December 6, 2012. Use WPIC 98.03 (Traffic Cases—Drug—Definition) as applicable.

If more than one of the statutory alternative means listed in RCW 46.61.502 or RCW 46.61.504 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).

RCW 46.61.502; RCW 46.61.504. These instructions are frequently amended. See Comment to WPIC 92.01 (Driving or Being in Physical Control While Under the Influence—Definition). This instruction may also be modified for use with the crime of Boating Under the Influence (BUI) as charged under RCW 79A.60.040. See Comment below.

Definition of DUI. Driving under the influence (DUI) is referred to in older cases as driving while intoxicated or DWI. Pursuant to RCW 46.61.502, as amended in 1999, a person drives under the influence if that person drives while having 0.08 grams or more of alcohol per two hundred liters of breath or while having 0.08 percent or more by weight of alcohol in the person's blood or while the person is under the influence of or affected by intoxicating liquor or any drug or the combined influence of intoxicating liquor and any drug. Case law has interpreted the phrase “under the influence of or affected by” 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. Hansen, 15 Wn.App. 95, 546 P.2d 1242 (1976).

Under RCW 46.61.502, and RCW 46.61.504, a person also drives or is in actual physical control of a vehicle while under the influence if that person has a THC concentration of 5.00 nanograms per milliliter of whole blood, or higher, within two hours of driving. RCW 46.61.502(1)(b); RCW 46.61.504(1)(b); RCW 46.61.506(2)(b).

Strict liability crime. Driving under the influence (DUI) and physical control while under the influence are strict liability offenses not requiring the State to prove mens rea. RCW 46.61.502; RCW 46.61.504. Where the defendant is alleged to be under the influence of prescription drugs, knowledge about the side effects of those drugs is not an implied element that the State is required to prove in a prosecution for DUI or physical control, but lack of knowledge may be an available affirmative defense. See State v. Dailey, 174 Wn.App. 810, 300 P.3d 834 (2013).

Lesser included offenses. The crime of being in physical control of a motor vehicle while under the influence is a lesser offense of the crime of driving under the influence. Driving under the influence contains all of the elements of being in physical control and has the additional element of vehicular motion. State v. Nguyen, 165 Wn.2d 428, 197 P.3d 673 (2008).

First degree negligent driving is not a lesser included offense of driving under the influence, as all the elements of negligent driving are not included in the elements of DUI. See State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) (setting forth requirements for lesser included offenses); State v. Bosio, 107 Wn.App. 462, 465–66, 27 P.3d 636 (2001) (holding that negligent driving under the post-1996 statute is not a lesser included of vehicular assault; a similar analysis applies to negligent driving and DUI); City of Bellevue v. Redlack, 40 Wn.App. 689, 700 P.2d 363 (1985).

Infractions are not lesser included offenses of criminal charges. State v. Farr-Lenzini, 93 Wn.App. 453, 466–68, 970 P.2d 313 (1999) (second degree negligent driving is not a lesser included offense of reckless driving).

“Within this state.” RCW 46.61.502(1) and RCW 46.61.504(1) specify that the driving or physical control must be “within this state.” RCW 46.61.005 clarifies that the provisions of RCW 46.61.500 through 46.61.525 “shall apply upon highways and elsewhere throughout the state.”

In State v. Day, 96 Wn.2d 646, 638 P.2d 546 (1981), the defendant, while under the influence, drove an unlicensed vehicle in circles in a field owned by his parents. The court held that the DUI statute did not apply because there was no threat to the public under the facts of the case. The court in City of Edmonds v. Ostby, 48 Wn.App. 867, 740 P.2d 916 (1987), however, distinguished Day and held that the physical control statute applies to intoxicated persons in vehicles on private property. Such a challenge is one for the trial court, not jury, and perhaps is best made in accordance with the pre-trial procedures outlined in State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).

Boating under the influence. RCW 79A.60.040 covers the situation of operating a vessel under the influence. This instruction may be modified for use for the offense of boating under the influence (BUI). In 2013, the Legislature amended 79A.60.040 to include a per se THC offense (in addition to alcohol and any drug) and elevated the crime from a misdemeanor to a gross misdemeanor. In 2014, the Legislature amended RCW 79A.60.040 (Laws of 2014, Chapter 132, § 1 (effective June 12, 2014)) to authorize a blood test for BUI under circumstances similar to a DUI charged under RCW 46.61.502.