Posted: February 6, 2025
Criminal Jury Instructions – Comment Period Closes March 20th, 2025
The following instruction has been amended or created. The Committee requests feedback on the proposed instruction:
CR1002 – Actual Physical Control
Please reference the instruction(s) in your comments. Although these instructions are subject to a comment period, they are now ready for use. The Model Criminal Jury Instructions Committee will consider all comments made during the comment period and may revise the instructions as appropriate.
I understand that this basically follows the wording of the statute but instructions framed in the negative are ALWAYS super confusing, even to attorneys. There has to be a better way to phrase this.
I agree that as written it could be confusing to jurors by reciting the statute verbatim. Instructions to a jury should be clear and explain what the statute states. I would suggest:
“Actual physical control” is determined by a consideration of the totality of the
circumstances. However, a person is not in actual physical control if all of the following conditions are met:
(a) the person is asleep inside the vehicle;
(b) the person is not in the driver’s seat of the vehicle;
(c) the engine of the vehicle is not running;
(d) the vehicle is lawfully parked; and
(e) under the facts presented, it is evident that the person did not drive the vehicle
to the location while under the influence of alcohol, a drug, or the combined
influence of alcohol and any drug.
I suggest that the committee consider tabling this instruction or substantially reworking it.
“Actual physical control” (APC) is not defined in statute despite the existence of an example provided by the legislature.
Because APC is not defined, jurors should look to the plain meaning of the words: actual (not merely possible), physical (not merely considered), control (not just capable of control). They are instructed, according to the statute, to consider the totality of circumstances as their source of insight. That, however, is not entirely helpful since, after all, the entire fact-finding mission of a jury is to consider the totality of the facts presented and then weigh them. In other words, a jury is not instructed to do anything with APC that they aren’t already supposed to do.
To be clear, there is a line of cases, culminating in State v. Barnhart that suggest how APC could be understood. 850 P.2d 473 (Utah App 1993). Barnhart affirms a set of non-exclusive factors from a prior case.
Instructing the jury on a multi-factored test that was created by the courts is not without precedent. This committee’s constructive possession instruction (CR1202B) does just that.
I join with other commentors in noting that this committee should not be in the business of merely reproducing a statute in an instruction; it should be making the law as simple as it can be without incorrectly stating the law.
APC should be left undefined by this committee because it is undefined by statute.
If the committee feels emboldened to provide an instruction, the instruction should provide guidance on the totality of the circumstances in a way that mirrors CR1202B.
If the committee provides the multifactored analysis for the jury to consider, it should not include the legislature’s example of when APC doesn’t exist. The legislature’s example provides no real insight to a jury. It indicates that there is no APC when a person is merely present in a car, asleep, unable to drive the car. To be slightly crass: “well duh!” The statute effectively says, “no APC exists when there are no facts suggesting APC exists.” It’s entirely unhelpful.
Even worse, the legislature’s example could be misunderstood by the jury to require a conviction when the evidence is against it. Again, according to the statute, it’s not APC if the defendant is *asleep* in the back seat of a turned off car that’s parked normally. Well, what if a prosecutor gets up on closing and says, “Members of the jury, the defendant is guilty because he was *awake* while in the back seat of a turned off car that’s parked normally. Because he was awake and listening to a podcast instead of asleep when the police saw him, he is guilty” The instruction could be misused to suggest that the prosecutor has carried his burden because he has shown one fact that’s slightly different than the legislature’s example. A jury might misunderstand the instruction to believe that the prosecutor has met his burden. To the extent that the proposed instruction could lead to that result simply because the jury is confused about the minimum threshold for APC, the proposed instruction does harm.
I respectfully request that the committee either foregoes this instruction, or reworks it to mirror CR1202B.