WPIC 92.05 Operating or Being in Physical Control of a Motor Vehicle After Consuming Alcohol or...
11A WAPRAC WPIC 92.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 92.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XI. Crimes Involving Operation of Motor Vehicles
WPIC CHAPTER 92. Driving Under the Influence
WPIC 92.05 Operating or Being in Physical Control of a Motor Vehicle After Consuming Alcohol or Marijuana—Under the Age of Twenty-One—Elements
To convict the defendant of [operating] [being in physical control of] a motor vehicle after having consumed [alcohol] [marijuana], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant was under twenty-one years of age;
(2) That the defendant [operated] [was in physical control of] a motor vehicle;
(3) That the defendant, at the time of [operating] [physical control of] the motor vehicle, had sufficient [alcohol in his or her body to have an alcohol concentration of at least 0.02 [and less than 0.08]] [marijuana in his or her body to have a THC concentration of more than 0.00 [and less than 5.00]] within two hours after [operating] [being in physical control of] the motor vehicle as shown by an accurate and reliable test of the defendant's breath or blood; and
(4) That this act occurred in the [State of Washington] [City of ] [County of ].
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if after weighing all the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use the THC bracketed language only for offenses occurring on or after December 6, 2012.
Use bracketed material as applicable. For a general discussion about the use of bracketed elements see WPIC 4.20 (Introduction).
In element (4), choose from among the bracketed phrases depending on whether the case is being heard in superior, municipal, or district court. For a discussion of the phrase “this act” in element (4), also see 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 the bracketed phrase referring to 0.08 if there is a second charge of DUI and sufficient evidence to support it. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).
Use WPIC 92.12 (Driving or Being in Physical Control While Under the Influence—Alcohol or THC Concentration—Definition) with this instruction.
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 92.14 (Driving or Being in Physical Control While Under the Influence—Defense—Drinking or Consuming After Driving or Physical Control) and its Comment if the defendant raises an issue about ingesting alcohol or marijuana after driving.
See WPIC 92.14 (Driving or Being in Physical Control While Under the Influence—Defense—Drinking or Consuming After Driving or Physical Control) and WPIC 92.15 (Physical Control While Under the Influence—Defense—Safely Off the Roadway) regarding the potential defense of the vehicle being safely off the roadway, if either defense is raised to a charge of minor operating or being in physical control of a motor vehicle after consuming alcohol or marijuana.
COMMENT
RCW 46.61.503.
This offense, often referred to as “minor DUI,” is not a lesser included offense of DUI (RCW 46.61.502) or physical control while under the influence (RCW 46.61.504). The additional element of age precludes this charge as a lesser included offense of DUI. See generally State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) (setting forth requirements for lesser included offenses).
Also unlike DUI, the charge of a minor operating a vehicle after consuming alcohol or marijuana under RCW 46.61.503, cannot be proved without a breath or blood test showing the specified level of either alcohol or marijuana, or both.
This minor DUI offense does not count as a “prior offense” under RCW 46.61.5055(11).
As to the applicability of the defenses, see the Comments to WPIC 92.14 (Driving or Being in Physical Control While Under the Influence—Defense—Drinking or Consuming After Driving or Physical Control) and WPIC 92.15 (Physical Control While Under the Influence—Defense—Safely Off the Roadway).
[Current as of February 2020.]
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