WPIC 92.10 Under the Influence of or Affected by Intoxicating Liquor or Marijuana or Drugs—Defi...

Use this instruction whenever the DUI or physical control alternative means of under the influence of or affected by is submitted to a jury.

Do not use this instruction for a charge under RCW 46.25.110 (driving a commercial motor vehicle with alcohol or THC in system) or RCW 46.61.503 (minor driving after consuming alcohol or marijuana).

If a defendant is over the age of 21, use all of the second paragraph selecting the bracketed phrases that fit the facts. If a defendant is under the age of 21 or is driving a commercial vehicle, modification of the first sentence of the second paragraph may be required.

Use the bracketed third paragraph if it will assist the jury. Use the last bracketed phrase of the third paragraph if applicable and there are multiple charges at trial. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

RCW 46.61.502.

Basic definition. The first paragraph is based on language in State v. Hurd, 5 Wn.2d 308, 105 P.2d 59 (1940), discussing the statute in effect at that time regulating driving while intoxicated (“DWI”). As a jury instruction, this language was approved in State v. Hansen, 15 Wn.App. 95, 546 P.2d 1242 (1976). This language has been used in the pattern jury instructions since 1977, when the first edition was published and has been used commonly thereafter, including for the current offense referred to as driving under the influence (“DUI”). It has been commonly used without finding of error thereafter. See, e.g., State v. Lewellyn, 78 Wn.App. 788, 794, 895 P.2d 418 (1995), affirmed on other grounds, State v. Smith, 130 Wn.2d 215, 922 P.2d 811 (1996). (“The jury was properly instructed,” citing to this instruction in the second edition of this volume).

Nonetheless, recognizing the opinion of some practitioners and judges that jurors' understanding of the phrase “in any appreciable degree” could be enhanced by clarifying language, the WPI Committee has considered various reformulations of the basic definition contained in the first paragraph of this instruction. Ultimately, the WPI Committee concluded that the most accurate phrases (e.g., “capable of being recognized or perceived”) add nothing, while other phrases either seemed to raise or lower the threshold or otherwise suggest an inappropriate quantification. Further clarification efforts by trial courts are not to be discouraged, but should be done with these considerations in mind. See WPIC 0.10 (Introduction to Washington's Pattern Jury Instructions for Criminal Cases).

Consumption of alcohol. The second paragraph has been used with approval in trial court jury instructions. See, e.g., State v. Hurd, 5 Wn.2d 308, 316, 105 P.2d 59 (1940); State v. Hansen, 15 Wn.App. 95, 97, 546 P.2d 1242 (1976). It is a correct statement of the law. State v. Gillenwater, 96 Wn.App. 667, 980 P.2d 318 (1999); State v. Franco, 96 Wn.2d 816, 825, 639 P.2d 1320 (1982); State v. Melcher, 33 Wn.App. 357, 363, 655 P.2d 1169 (1982). It is also not error to refuse to give this paragraph when the subject matter is adequately covered in the other instructions. See City of Seattle v. Urban, 32 Wn.App. 634, 636–37, 648 P.2d 922 (1982).

It is unlawful for a person under the age of twenty-one to operate a motor vehicle with any measurable quantity of alcohol or marijuana (measured by THC) in his or her system. RCW 46.61.503. It is also unlawful for a person to operate a commercial motor vehicle with any measurable quantity of alcohol or THC in his or her system. RCW 46.25.110.

Lawful use of drugs not a defense. In 2014, the third paragraph of this instruction was moved from WPIC 92.01 (Driving or Being in Physical Control While Under the Influence—Definition). Paragraph 3 of this instruction is an accurate statement of the law. City of Seattle v. Pearson, 192 Wn.App. 802, 821, 369 P.3d 194 (2016) (for reasons specific to the case, the court found no error when the third bracketed was not given to the jury).

Both RCW 46.61.502(2) and RCW 46.61.504(2) expressly state that it is not a defense to either DUI or physical control that a person is or has been entitled to use marijuana or a drug under the laws of this state. See also RCW 69.51A.060 (medical marijuana affirmative defense does not apply to charges involving the use of a motor vehicle in a manner that endangers the health or well-being of any person, including violations of RCW 46.61.502 and RCW 46.61.504).