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WPIC 96.20 Negligent Driving—First Degree—Prescription Drug Defense

11A WAPRAC WPIC 96.20Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 96.20 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part XI. Crimes Involving Operation of Motor Vehicles

WPIC CHAPTER 96. Negligent Driving

WPIC 96.20 Negligent Driving—First Degree—Prescription Drug Defense

It is a defense to a charge of negligent driving in the first degree [by means of exhibiting the effects of having consumed any drug] that the defendant had a valid prescription for the drug consumed and had been consuming it according to the prescription directions and warnings.

The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that the defense is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].

NOTE ON USE

Use this instruction with WPIC 96.02 (Negligent Driving First Degree—Elements). Use this instruction only when there is evidence to support it.

COMMENT

RCW 46.61.5249(1)(b). Caution should be used by practitioners depending on the date of the offense. See Comment below.

Effective August 1, 2012, RCW 46.61.5249(1)(b) provides that it is

an affirmative defense to negligent driving in the first degree by means of exhibiting the effects of having consumed any drug that must be proved by the defendant by a preponderance of the evidence, that the driver has a valid prescription for the drug consumed, and has been consuming it according to the prescription directions and warnings.

Right of defendant to forgo an affirmative defense. A court should not instruct the jury on an affirmative defense over the objection of the defendant. Relying on Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), our Supreme Court has held that “[t]he Sixth Amendment right to control one's defense encompasses the decision to present an affirmative defense.” State v. Coristine, 177 Wn.2d 370, 376, 300 P.3d 400 (2013) (statutory defense of “reasonable belief” in a prosecution for rape in the second degree- RCW 9A.44.020(1)). See also State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections); c.f. State v. Jones, 99 Wn.2d 735, 664 P.2d 1216 (1983) (under Faretta, the court may not enter a plea of not guilty by reason of insanity over the defendant's objection). Without the defendant's request or agreement, the jury should not be instructed on an affirmative defense. A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party who presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

[Current as of February 2020.]

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