WPIC 92.03 Special Verdict Form—Driving or Being in Physical Control While Under the Influence—...

This instruction should be used if the charge includes special allegations pursuant to RCW 46.61.5055(1) (alcohol concentration 0.15 or more, or refusal) and/or RCW 46.61.5055(4) (passenger under age 16). The special verdict form needs to be accompanied by a concluding instruction that explains the proper use of the form. See WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancement) (setting forth a paragraph that is to be inserted into the concluding instruction, WPIC 151.00 (Basic Concluding Instruction) or WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt), whichever is applicable).

When evidence of a breath test refusal is submitted to the jury, use WPIC 92.13 (Breath Test Refusal—Definition).

The verdict form reflects amendments to RCW 46.20.308, which, in 2013, removed the option for blood testing under the implied consent statute. See RCW 46.20.308(1). A defendant is no longer subject to enhanced mandatory minimum penalties at sentencing for refusing to submit to a test of his or her blood.

It should be noted that Question 2 does not track the statute because while the implied consent statute refers to “a test or tests of his or her breath for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug,” as of the date of this instruction there is no breath testing instrument in use in Washington state with the capability of detecting the presence or concentration of THC or other drugs.

The statute. RCW 46.61.5055 mandates a greater mandatory minimum sentence for DUI and physical control if the DUI or physical control is committed: (1) when the defendant's breath or blood test shows an alcohol concentration of 0.15 or higher; (2) when the defendant refuses to submit to a test of his or her breath for purposes of determining alcohol concentration; and/or (3) when the defendant committed the crime while a passenger under the age of 16 was in the vehicle.

As noted above, this instruction should be given to the jury in any case where the defendant is charged with one or more of the special allegations which increase the mandatory minimum listed in RCW 46.61.5055 related to breath or blood alcohol concentration of .15 or higher, refusal to submit to a breath test, or the presence of passengers under 16 years of age in the vehicle. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (any fact that increases the mandatory minimum sentence for a crime is an “element” that must be submitted to the jury).

Use of special verdict. If jurors are being asked to consider facts relating to a mandatory minimum sentence, then these facts may be set forth in a separate verdict form rather than including the facts in the to-convict instruction, as long as the jurors are instructed that in order to answer “yes” they must unanimously agree that the relevant facts have been proved beyond a reasonable doubt. The Washington Supreme Court held as much in instances when a statutory element raises an offense from a gross misdemeanor to a felony, see State v. Davis, 154 Wn.2d 291, 111 P.3d 844 (2005), affirmed on other grounds, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (offense of violating a domestic violence court order); State v. Mills, 154 Wn.2d 1, 109 P.3d 415 (2005) (offense of harassment).