WPIC 92.14 Driving or Being in Physical Control While Under the Influence—Defense—Drinking or C...
11A WAPRAC WPIC 92.14Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 92.14 (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 92.14 Driving or Being in Physical Control While Under the Influence—Defense—Drinking or Consuming After Driving or Physical Control
It is a defense to [driving under the influence] [physical control while under the influence] [minor driving after consuming [alcohol] [marijuana]] [as charged in Count ] that the defendant consumed a sufficient quantity of [alcohol] [marijuana] after the time of [driving] [being in actual physical control of the vehicle] and before the administration of a test of the defendant's [breath] [blood] to cause the defendant's [alcohol concentration to be [0.08] [0.02] or higher] [THC concentration to be [5.00 or higher] [higher than 0.00]] within two hours after [driving] [being in actual physical control of the vehicle].
The prosecution has the burden of proving beyond a reasonable doubt that [either:]
[(1)] [The defendant did not consume [alcohol] [marijuana] after [driving] [being in actual physical control of the vehicle]] [;] [or]
[(2)] [The quantity of [alcohol] [marijuana] the defendant consumed after the time of [driving] [being in actual physical control of the vehicle] and before the administration of a test of the defendant's [breath] [blood] did not cause the defendant's [alcohol concentration to be [0.08] [0.02] or higher] [THC concentration to be 5.00 or higher] within two hours after [driving] [being in control of the vehicle].]
If after weighing all of the evidence, you have a reasonable doubt as to whether the prosecution has met its burden of proof as to this defense, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction when the defense of the defendant's consuming alcohol or marijuana after the time of driving or physical control and before the administration of a breath or blood test is an issue supported by the evidence. See RCW 46.61.502(3); RCW 46.61.503; RCW 46.61.504(3). The instruction applies only if the per se (.02/.08 alcohol or 5.00 THC) prong is at issue.
Use the alternative elements only if each is supported by sufficient evidence. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).
COMMENT
RCW 46.61.502 et seq.
In State v. Robbins, 138 Wn.2d 486, 496–97, 980 P.2d 725 (1999), the court held that the “affirmative defense” set forth in RCW 46.61.502(3) of drinking after driving is to be handled like self-defense. In other words, once the defendant raises the defense, the state has the burden of disproving it. State v. Robbins, 138 Wn.2d at 496.
[Current as of February 2020.]
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