WPIC 96.02 Negligent Driving—First Degree—Elements
11A WAPRAC WPIC 96.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 96.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part XI. Crimes Involving Operation of Motor Vehicles
WPIC CHAPTER 96. Negligent Driving
WPIC 96.02 Negligent Driving—First Degree—Elements
To convict the defendant of the crime of negligent driving in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant operated a motor vehicle;
(2) That the defendant operated the motor vehicle in a negligent manner;
(3) That the defendant operated the motor vehicle in such a manner as to endanger or be likely to endanger any person or property;
(4) That the defendant exhibited the effects of having [consumed [liquor] [or] [marijuana] [or] [any drug]] [or] [inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects]; and
(5) That any of these acts 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
Along with this instruction, use WPIC 96.03 (Negligent Driving—Negligent—Definition). Also use WPIC 96.10 (Negligent Driving—First Degree—Exhibiting the Effects of Liquor, Marijuana, Drugs, or Any Chemical—Definition). As applicable, also use WPIC 98.03 (Traffic Cases—Drug—Definition) or WPIC 96.20 (Negligent Driving—First Degree—Prescription Drug Defense).
Use the bracketed phrases in element (4) as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).
In element (5), 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 “any of these acts” in element (5), 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).
The negligent driving first degree statute was amended in 2012 and again in 2013. Under the former version of RCW 46.61.5249, a person committed the crime of negligent driving in the first degree if that person operated a motor vehicle in a dangerous manner while exhibiting the effects of having recently consumed alcohol or an “illegal drug.” Effective August 1, 2012, the “huffing” language was added: “or exhibits the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects.” Laws of 2012, Chapter 183, § 13 (effective August 1, 2012). With the passage of Initiative 502 (effective December 6, 2012) and the decriminalization of marijuana, the former version of RCW 46.61.5249 was outdated, with respect to its reference to “illegal drugs.” Therefore, in response to Initiative 502, the Legislative amended the negligent driving first degree statute to remove the reference to “illegal drugs,” and it now includes specific reference to “liquor or marijuana or any drug.” Laws of 2013, 2d Spec. Sess., Chapter 35, § 16 (effective September 28, 2013). For crimes that occurred prior to these effective dates, the prior versions of WPIC 96.01 and WPIC 96.03 apply.
No lesser offenses. It is error to submit to the jury an instruction on negligent driving in the second degree as a lesser included offense of negligent driving in the first degree. State v. Farr-Lenzini, 93 Wn.App. 453, 970 P.2d 313 (1999). In 1996, the Legislature placed negligent driving in the first degree in a separate statute, RCW 46.61.5249. Negligent driving in the second degree remains codified at RCW 46.61.525 and was downgraded to a traffic infraction. RCW 46.61.525(1)(c). Because negligent driving in the second degree is an infraction and not a criminal offense, there is no right to a jury trial. RCW 46.63.090(1).
Negligent driving in the first degree is not a lesser included offense to driving under the influence of intoxicating liquor or drugs. City of Bellevue v. Redlack, 40 Wn.App. 689, 700 P.2d 363 (1985). See also the Comment to WPIC 92.02 (Driving or Being in Physical Control While Under the Influence—Elements).
Affirmative defense. RCW 46.61.5249 provides an affirmative defense to negligent driving in the first degree for consuming a drug pursuant to instructions under a valid prescription. RCW 46.61.525(1)(b). This defense was not available prior to the 2012 changes to the statute. See the Comment to WPIC 96.20 (Negligent Driving—Prescription Drug Defense). For a discussion of the current state of the law with regard to statutory affirmative defenses, see WPIC 14.00 (Defenses—Introduction).
[Current as of February 2020.]
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