WPIC 92.26 Driving or Being in Physical Control While Under The Influence—Felony—Elements

Use this instruction only when the defendant is charged with felony driving under the influence or felony physical control under the influence.

The bracketed word “felony” in the first sentence of this instruction should be used when the jury is also being instructed on the lesser included gross misdemeanor offense of driving under the influence or being in physical control while under the influence.

For paragraph 2, see the Note on Use and Comment to WPIC 92.02 (Driving or Being in Physical Control While Under the Influence—Elements). Use the alternative elements in paragraph 3 as applicable to the case. Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

For paragraph 3, use “four” or more prior offenses for charges arising after July 1, 2007 and before July 23, 2017. Use “three” or more prior offenses for charges arising after July 23, 2017.

Use with WPIC 92.25 (Driving or Being in Physical Control While Under the Influence—Felony—Definition). Use WPIC 92.27 (Driving or Being in Physical Control While Under the Influence—Felony—Definition of Prior Offense) as applicable.

Use WPIC 92.28 (Driving or Being in Physical Control While Under the Influence—Felony—Definition of Comparable Offense) as necessary to assist the jury.

Use WPIC 92.10 (Under the Influence of or Affected by Intoxicating Liquor or Marijuana or Drugs—Definition), WPIC 92.12 (Driving or Being in Physical Control While Under the Influence—Alcohol or THC Concentration—Definition), WPIC 92.13 (Breath Test Refusal—Definition), WPIC 92.14 (Driving or Being in Physical Control While Under the Influence—Defense—Drinking or Consuming After Driving or Physical Control), WPIC 92.15 (Physical Control While Under the Influence—Defense—Safely Off the Roadway), or WPIC 92.16 (Evaluation of Blood or Breath Test Results) depending on the evidence presented as to the alternate means elements of the case presented.

The essential format of this instruction was approved in State v. Chambers, 157 Wn.App. 465, 473–74, 237 P.3d 352 (2010).

RCW 46.61.502(6) and 46.61.504(6). Effective July 23, 2017, the aggravating element was decreased from four prior offenses to three prior offenses. Laws of 2017, Chapter 335, § 1. These statutes are frequently amended. Care should be taken to consider the incident date. This instruction has been revised for this edition to include 2017 legislative changes. Use the bracketed “four” prior offenses for charges arising after July 1, 2007 and before July 23, 2017. Use the bracketed “three” prior offenses for charges arising after July 23, 2017.

Like many of the statutes in this area, there have been a number of amendments since its initial enactment. Effective July 1, 2007, the Legislature created the new crime of felony driving/physical control while under the influence. Laws of 2006, Chapter 73, § 1. The means of commission of the felony offense were amended in 2009. 2011, 2013 and 2017. Laws of 2008, Chapter 282, § 20 (effective January 1, 2009); Laws of 2011, Chapter 293, §§ 1 to 9 (effective July 22, 2011); Laws of 2013, Chapter 3, § 33 (Initiative 502 (effective December 6, 2012)); Laws of 2017, Chapter 335, § 1 (effective July 23, 2017).

Title of crime. For ease of reference, the instructions refer to this offense as “felony driving or physical control under the influence.” The word “felony” should be included if the jury is also being instructed on the gross misdemeanor form of the crime, WPIC 92.01. If the jury is not instructed on the gross misdemeanor DUI offense, then the word “felony” may be removed from the instruction. Juries are routinely instructed that they should not consider potential punishment during deliberations. See WPIC 1.20 (Conclusion of Trial—Introductory Instruction). Care should be taken to use the word “felony” when necessary to the juror's charge.

Jurisdictional element. The unusual placement of the jurisdictional element in this instruction highlights that jurisdiction is conferred by the act of driving or physical control of the motor vehicle. RCW 46.61.502 and RCW 46.61.504.

Distinction between acts punishable as a felony and as a gross misdemeanor offense. The charge of felony DUI or physical control requires the State to prove enhancing elements that are not required for the gross misdemeanor offenses. See RCW 46.61.502(6) and RCW 46.61.504(6). The gross misdemeanor offenses of driving under the influence and physical control under the influence are lesser included offenses of felony driving or physical control under the influence. See discussion at WPIC 4.11 (Lesser Included Crime or Lesser Degree).

Under some circumstances, a minor charged with driving under the influence may also be charged with a felony. RCW 46.61.502 was amended in 2016, increasing the classification of the offense for a juvenile (Laws of 2016, Chapter 87, § 1 (effective June 9, 2016)).

Enhancing elements and prior convictions. Driving under the influence or being in physical control while under the influence are gross misdemeanor crimes unless one of the enhancing elements is established. RCW 46.61.502(6) and RCW 46.61.504(6). The various enhancing elements are alternative means that do not require jury unanimity. For a detailed discussion of alternative means, refer to the Note on Use and Comment to WPIC 4.23 (Elements of a Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

When prior convictions elevate an offense from a gross misdemeanor to a felony, the prior convictions function as an element of the felony offense that must be proved beyond a reasonable doubt. State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019) (reckless driving conviction originally charged as a DUI is sufficient without other underlying evidence required). See also State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002); State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010). Also see discussion in Comment to WPIC 36.51.02 (Violation of a Court Order—Felony—Elements). The Sixth Amendment right to a jury guarantees the right to have a jury find every fact essential to punishment beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The State must prove each essential element of the crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Although the phrase “comparable to” in referring to prior out-of-state convictions is a part of the statute, the phrase has been bracketed in this instruction. The jury is unlikely to be asked to determine if an out-of-state conviction is “comparable” to a Washington offense. Currently, the admissibility and validity of a prior offense is a question of law to be determined by the trial court. State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010). See WPIC 92.28 (Driving or Being in Physical Control While Under the Influence—Felony—Definition of Comparable Offense) for further discussion.

Jury instructions must “clearly set forth the elements of the crime charged.” State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). Therefore, an elements instruction that purports to present all of the requisite elements to the jury in a “complete statement of the law and yet omits an element creates a constitutional error requiring reversal.” State v. Oster, 147 Wn.2d at 146–47 (citing State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)).

Stipulations. For a discussion of Old Chief stipulations, see State v. Ortega, 134 Wn.App. 617, 142 P.3d 175 (2006); see also State v. Roswell, 165 Wn.2d 186, 195–98, 196 P.3d 705 (2008). Further discussion is contained in the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).

Generally, enhancing elements that elevate a gross misdemeanor to a felony offense are included in the “to convict” instruction and this is constitutionally permissible. State v. Mills, 154 Wn.2d 1, 11, n.6, 109 P.3d 415 (2005); State v. Chapman, 140 Wn.2d 436, 998 P.2d 282 (2000).

A bifurcated trial for the element of prior convictions is within the court's discretion. State v. Tysyachuk, 13 Wn.App.2d 35, 461 P.3d 403 (2020). In Tysyachuk, a case involving the charge of felony driving under the influence, no bifurcation was required. See also State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). If requested by the defendant, the trial court judge may consider the approach outlined in Roswell's footnote 6, under which the instruction can be drafted referring to a statutory citation instead of the name of the crime. This approach involves a stipulation, a colloquy with the defendant, and an additional instruction.