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CR1001 Preamble to Driving under the Influence Instructions.

In the realm of DUI, practitioners often request that the court give instructions that comment on the sufficiency, or relative quality, of evidence. Some examples of such instructions include:

  • "Bookends"
  • Standardized field sobriety tests (including horizontal gaze nystagmus)
  • Baker waiting period
  • Breath test
  • "Mere consumption"
  • "Under the influence"
  • Margin of error

Instructions of this nature are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965) and Utah R. Crim. P. 19(f).

Committee Amended

01/08/2020
CR1003 Driving Under the Influence of Alcohol, Drugs, or Combination

(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving Under the Influence of [Alcohol][Any Drug][the Combined Influence of Alcohol and Any Drug] [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

  1. (DEFENDANT'S NAME)
    1. operated a vehicle; or
    2. was in actual physical control of a vehicle; and
  2. (DEFENDANT'S NAME):
    1. [had sufficient alcohol in [his][her] body that a subsequent chemical test showed that [he][she] had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of the test;]
    2. [was under the influence of [alcohol][any drug][the combined influence of alcohol and any drug] to a degree that rendered [him][her] incapable of safely operating a vehicle; or]
    3. [had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of operation or actual physical control].
  3. [The defense of ________ does not apply.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Utah Code sect. 41-6a-502
Utah Code sect. 76-2-101(2)
State v. Bird, 2015 UT 7
State v. Higley, 2020 UT App 45
State v. Thompson, 2017 UT App 183
State v. Vialpando, 2004 UT App 95

Committee Notes

This instruction is intended to be used in prosecuting Class B Misdemeanor driving under the influence. For Class A Misdemeanor or Third Degree Felony driving under the influence instructions, use CR1004 or CR1005, respectively.

In the realm of DUI, courts often give instructions at the request of the parties that comment on the sufficiency, or relative quality, of evidence. These instructions are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965); Utah R. Crim. P. 19(f) ; and CR1001 "Preamble to Driving Under the Influence Instructions."

As of July 1, 2020, Utah Code was amended to explicitly state that driving under the influence is a strict liability offense (see HB0139-2020, line 164). For any offense committed prior to July 1, 2020, there is divergent legal authority on whether driving under the influence is a strict liability offense with respect to the operation or actual physical control of the vehicle. See Utah Code § 76-2-101(2) (no mental state generally required for traffic offenses), State v. Higley, 2020 UT App 45, and State v. Thompson, 2017 UT App 183; but see State v. Vialpando, 2004 UT App 95, ¶ 26.

Committee Amended

01/08/2020 05/06/2020
CR1004 Driving Under the Influence of Alcohol, Drugs, or Combination

(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving Under the Influence of [Alcohol][Any Drug][the Combined Influence of Alcohol and Any Drug] [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

  1. (DEFENDANT'S NAME)
    1. operated a vehicle; or
    2. was in actual physical control of a vehicle; and
  2. (DEFENDANT'S NAME):
    1. [had sufficient alcohol in [his][her] body that a subsequent chemical test showed that [he][she] had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of the test;]
    2. [was under the influence of [alcohol][any drug][the combined influence of alcohol and any drug] to a degree that rendered [him][her] incapable of safely operating a vehicle; or]
    3. [had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of operation or actual physical control;] and
  3. (DEFENDANT'S NAME):
    1. [operated the vehicle in a negligent manner which was the proximate cause of bodily injury upon [VICTIM'S NAME];]
    2. [had a passenger under 16 years of age in the vehicle at the time of the offense;]
    3. [was 21 years of age or older and had a passenger under 18 years of age in the vehicle at the time of the offense;]
    4. [operated a vehicle onto or from any controlled-access highway except at entrances and exits established by the appropriate highway authority; or]
    5. [on or after July 1, 2020, without being directed or permitted by a traffic-control device or peace officer:
      1. operated a vehicle on a divided highway using the left-hand roadway; or
      2. operated a vehicle over, across, or within any dividing space, median, or barrier of a divided highway.]
  4. [The defense of ________ does not apply.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Utah Code sect. 41-6a-502
Utah Code sect. 76-2-101(2)
State v. Bird, 2015 UT 7
State v. Higley, 2020 UT App 45
State v. Thompson, 2017 UT App 183
State v. Vialpando, 2004 UT App 95

Committee Notes

This instruction is intended to be used in prosecuting Class A Misdemeanor driving under the influence. For Class B Misdemeanor or Third Degree Felony driving under the influence instructions, use CR1003 or CR1005, respectively. An alternative method to instruct the jury would be to use CR1003 (MB Instruction) in combination with SVF1001 ("Driving Under the Influence Offenses").

In the realm of DUI, courts often give instructions at the request of the parties that comment on the sufficiency, or relative quality, of evidence. These instructions are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965); Utah R. Crim. P. 19(f) ; and CR1001 "Preamble to Driving Under the Influence Instructions."

As of July 1, 2020, Utah Code was amended to explicitly state that driving under the influence is a strict liability offense (see HB0139-2020, line 164). For any offense committed prior to July 1, 2020, there is divergent legal authority on whether driving under the influence is a strict liability offense with respect to the operation or actual physical control of the vehicle. See Utah Code § 76-2-101(2) (no mental state generally required for traffic offenses), State v. Higley, 2020 UT App 45, and State v. Thompson, 2017 UT App 183; but see State v. Vialpando, 2004 UT App 95, ¶ 26.

Committee Amended

01/08/2020 05/06/2020
CR1005 Driving Under the Influence of Alcohol, Drugs, or Combination

(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving Under the Influence of [Alcohol][Any Drug][the Combined Influence of Alcohol and Any Drug] [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

  1. (DEFENDANT'S NAME)
    1. operated a vehicle; or
    2. was in actual physical control of a vehicle; and
  2. (DEFENDANT'S NAME):
    1. [had sufficient alcohol in [his][her] body that a subsequent chemical test showed that [he][she] had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of the test;]
    2. [was under the influence of [alcohol][any drug][the combined influence of alcohol and any drug] to a degree that rendered [him][her] incapable of safely operating a vehicle; or]
    3. [had a blood or breath alcohol concentration of [.05][.08] grams or greater at the time of operation or actual physical control;] and
  3. (DEFENDANT'S NAME) operated the vehicle in a negligent manner which was the proximate cause of serious bodily injury upon [VICTIM'S NAME].
  4. [The defense of ________ does not apply.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Utah Code sect. 41-6a-502
Utah Code sect. 76-2-101(2)
State v. Bird, 2015 UT 7
State v. Higley, 2020 UT App 45
State v. Thompson, 2017 UT App 183
State v. Vialpando, 2004 UT App 95

Committee Notes

This instruction is intended to be used in prosecuting Third Degree Felony driving under the influence. For Class B Misdemeanor or Class A Misdemeanor driving under the influence instructions, use CR1003 or CR1004, respectively. An alternative method to instruct the jury would be to use CR1003 (MB Instruction) in combination with SVF1001 ("Driving Under the Influence Offenses"). For Third Degree Felony driving under the influence offenses that result from a prior conviction or convictions, practitioners should request that the court address the prior convictions in a bifurcated proceeding and, if appropriate, use SVF1002 ("Driving Under the Influence - Prior Conviction").

In the realm of DUI, courts often give instructions at the request of the parties that comment on the sufficiency, or relative quality, of evidence. These instructions are disfavored and may run afoul of the Utah Supreme Court's admonition that trial courts should not comment upon the evidence. See State v. Pappacostas, 407 P.2d 576 (Utah 1965); Utah R. Crim. P. 19(f) ; and CR1001 "Preamble to Driving Under the Influence Instructions."

As of July 1, 2020, Utah Code was amended to explicitly state that driving under the influence is a strict liability offense (see HB0139-2020, line 164). For any offense committed prior to July 1, 2020, there is divergent legal authority on whether driving under the influence is a strict liability offense with respect to the operation or actual physical control of the vehicle. See Utah Code § 76-2-101(2) (no mental state generally required for traffic offenses), State v. Higley, 2020 UT App 45, and State v. Thompson, 2017 UT App 183; but see State v. Vialpando, 2004 UT App 95, ¶ 26.

Committee Amended

01/08/2020 05/06/2020
CR1006 Automobile Homicide

(DEFENDANT'S NAME) is charged [in Count ____] with committing Automobile Homicide [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

[1. (DEFENDANT'S NAME);

a. Operated a vehicle in a negligent or criminally negligent manner; and

b. Caused the death of another; and

c. (DEFENDANT'S NAME):

i. [Had sufficient alcohol in [his] [her] body that a subsequent chemical test showed that [he] [she] had a blood or breath alcohol concentration of .05 grams or greater at the time of the test;]

ii. [Was under the influence of [alcohol] [a drug] [the combined influence of alcohol and a drug] to a degree that rendered [him] [her] incapable of safely operating a vehicle;] or

iii. [Had a blood or breath alcohol concentration of .05 grams or greater at the time of operation;]]

OR


[2. (DEFENDANT'S NAME);

a. Operated a vehicle in a criminally negligent manner; and

b. Caused the death of another; and

c. Had in [his] [her] body any measurable amount of a controlled substance.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

  • Utah Code Ann.  76-5-207(2)

MUJI 1st Instruction

Committee Notes

This instruction is intended to be used in prosecuting the crime of Automobile Homicide. For the definition of "negligent," see CR305. For the definition of "criminally negligent," see CR306A, CR306B, and CR307.

Committee Amended

CR1008 Driving With Any Measurable Controlled Substance in the Body

(DEFENDANT'S NAME) is charged [in Count ____] with committing Driving with any Measurable Controlled Substance in the Body [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT'S NAME);

2. Did operate or was in actual physical control of a vehicle; and

3. Had any measurable amount of a controlled substance or any metabolite of a controlled substance in [his] [her] body;

[and

4. The controlled substance was not:

(a) involuntarily ingested;

(b) prescribed by a practitioner for use;

(c) cannabis in a medicinal dosage form or a cannabis product in a medicinal dosage form; or

(d) otherwise legally ingested.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Utah Code Ann.  41-6a-517(2)(a)

Utah Code Ann. 76-2-101(2)

State v. Outzen, 2017 UT 30, 408 P.3d 334

MUJI 1st Instruction

Committee Notes

Practitioners are encouraged to use CR1201 to define "controlled substance." This instruction is intended to be used in prosecuting Class B Misdemeanor Driving with any Measurable Controlled Substance in the Body. For Driving Under the Influence—as found in Utah Code Ann. 41-6a-502— instructions, use CR1003, CR1004, or CR1005, respectively.

Similar to the offense of Driving Under the Influence, Driving with any Measurable Controlled Substance in the Body is a strict liability offense. See Utah Code Ann. § 76-2-101(2) (no mental state generally required for Title 41, Chapter 6a violations). But in contrast to Driving Under the Influence, Driving with any Measurable Controlled Substance in the Body does not require proof of impairment. See State v. Outzen, 2017 UT 30, paragraphs 7–12, 408 P.3d 334.

Committee Amended

CR1009 Negligently Operating a Vehicle Resulting in Injury

(DEFENDANT'S NAME) is charged [in Count ____] with committing Negligently Operating a Vehicle Resulting in Injury [on or about (DATE)]. You cannot convict [him] [her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

[1. (DEFENDANT'S NAME);

a. Operated a vehicle in a negligent manner; and

b. Caused [serious] bodily injury to another; and

c. (DEFENDANT'S NAME):

i. [Had sufficient alcohol in [his] [her] body that a subsequent chemical test showed that [he] [she] had a blood or breath alcohol concentration of .05 grams or greater at the time of the test;]

ii. [Was under the influence of [alcohol] [a drug] [the combined influence of alcohol and a drug] to a degree that rendered [him] [her] incapable of safely operating a vehicle;] or

iii. [Had a blood or breath alcohol concentration of .05 grams or greater at the time of operation;]]

OR


[2. (DEFENDANT'S NAME);

a. Operated a vehicle in a criminally negligent manner; and

b. Caused [serious] bodily injury to another; and

c. Had in [his] [her] body any measurable amount of a controlled substance.]

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

  • Utah Code Ann.  76-5-102.1(2)

MUJI 1st Instruction

Committee Notes

This instruction is intended to be used in prosecuting the crime of Negligently Operating a Vehicle Resulting in Injury. Whether that offense constitutes a Class A Misdemeanor or a Third-Degree Felony depends on whether the Defendant caused bodily injury or serious bodily injury to another. See Utah Code Ann.  76-5-102.1(3)(a)(iv). Practitioners should use the bracketed "[serious]" language accordingly. The offense can also be a Third-Degree Felony based on prior convictions. See Utah Code Ann.  76-5-102.1(3)(a)(ii)-(iii). If the prosecution charges the defendant with causing serious bodily injury, and the defendant requests a lesser-included instruction on bodily injury, the Committee recommends referring to CR505 on lesser-included offenses and using a special verdict form.

For the definition of "negligent," see CR305. For the definition of "criminally negligent," see CR306A, CR306B, and CR307.

Committee Amended