456 P.3d 658
Or. Ct. App.2019Background
- Police stopped Basham after a civilian complaint and observed constricted pupils, open sores, and slow movements; he performed poorly on the walk‑and‑turn FST and was arrested.
- A DRE evaluation and a urine test showed multiple substances: methamphetamine (stimulant), hydrocodone (narcotic analgesic), gabapentin and methocarbamol (CNS depressants).
- At trial Basham testified he had prior injuries from a 2004 crash affecting balance and had been very tired the night before arrest; defense presented an expert who conceded that methamphetamine "crash" could theoretically enhance narcotic‑type effects.
- The trial court, over Basham’s objection, gave the Miles (UCrJI 2708) jury instruction allowing a conviction if a physical condition made the defendant more susceptible to intoxicants.
- The jury convicted; on appeal Basham challenged the Miles instruction as unsupported by evidence. The court reversed and remanded the DUII conviction (Count 2) and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether giving a Miles instruction (UCrJI 2708) was proper | Evidence of multiple drugs and expert testimony about methamphetamine "crash" supported an inference of increased susceptibility | No evidence tied Basham’s prior injuries or fatigue to increased susceptibility to intoxicants | Instruction was improper: record lacked evidence linking the advanced physical conditions to greater susceptibility; reversible error (Count 2 reversed and remanded) |
Key Cases Cited
- State v. Miles, 8 Or App 189 (Or. App. 1972) (establishes the instruction allowing conviction if a physical condition increases susceptibility to intoxicants)
- State v. Huck, 100 Or App 193 (Or. App. 1990) (requires evidence that a physical condition made defendant more susceptible)
- State v. Gibbs, 193 Or App 296 (Or. App. 2004) (reversible error to give Miles instruction absent supporting evidence)
- State v. Curtis, 182 Or App 166 (Or. App. 2002) (same where fatigue was alleged physical condition)
- State v. Roller, 181 Or App 542 (Or. App. 2002) (reversed where flu did not support increased susceptibility inference)
- State v. Massey, 249 Or App 689 (Or. App. 2012) (summarizes the evidentiary requirement for Miles instructions)
- State v. Pierce, 235 Or App 372 (Or. App. 2010) (standard of review for jury instructions)
- State v. Ashkins, 357 Or 642 (Or. 2015) (instruction appropriate only if it correctly states law and is supported by record evidence)