968 N.W.2d 770
Wis. Ct. App.2021Background
- Officer stopped McAdory at ~2:26 a.m. for a nonworking headlight; body‑cam showed clear video/audio of the encounter.
- Officer observed signs (slurred speech, nervousness, odor of intoxicants), McAdory gave a false name, exited the car, then fled on foot; he was arrested after a short foot chase.
- McAdory consented to a blood draw ~39 minutes after the stop; lab testing showed cocaine (and metabolites, including cocaethylene) and THC; no ethanol detected.
- Jury convicted McAdory of (a) operating while impaired by a controlled substance (§ 346.63(1)(a)) and (b) operating with a detectable restricted controlled substance (§ 346.63(1)(am)); the State later dismissed the strict‑liability count at sentencing.
- At trial the court, over defense objection and at the prosecutor’s urging, omitted a paragraph from the pattern instruction defining “under the influence” (language explaining that not every consumer is “under the influence” and requiring a "sufficient amount" causing reduced judgment/steady hand).
- Prosecutor’s opening and closings repeatedly told the jury the impaired‑by‑drugs count required only (1) driving and (2) a detectable amount of controlled substances; defense did not correct those statements. On appeal McAdory argued insufficiency and a due‑process violation from jury misguidance; the court found the evidence sufficient but reversed for a due‑process instructional error and ordered a new trial.
Issues
| Issue | State's Argument | McAdory's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict under § 346.63(1)(a) (operating while under the influence of cocaine and THC) | Evidence (body‑cam, officer observations, flight, and positive blood test for cocaine/THC with no alcohol) provided a reasonable basis for the jury to infer impairment. | Evidence was too weak and speculative to prove impairment from cocaine/THC specifically; no DRE, no expert tying blood levels to impairment. | Conviction supported — evidence was sufficient under the highly deferential standard, though the court called the issue close. |
| Due process: whether trial events (prosecutor statements + modified instruction) reasonably likely led jury to treat mere detectible drugs as proof of ‘‘under the influence’’ | The instruction given was generally accurate; separate verdict forms and element recitations prevented confusion; any ambiguity was harmless or insufficiently shown to have relieved State’s burden. | Prosecutor repeatedly mischaracterized the impaired‑by‑drugs element as merely presence of a detectible drug; court removed language explaining "sufficient amount" and that not every consumer is "under the influence," creating a reasonable likelihood the jury thought detectible amount alone sufficed. | Reversed for violation of due process; the combined misstatements and omitted instruction language created a reasonable likelihood the jury was relieved of proving the impairment element; remanded for a new trial on § 346.63(1)(a). |
Key Cases Cited
- State v. Beamon, 347 Wis. 2d 559 (2013) (explains highly deferential sufficiency‑of‑evidence standard for jury verdicts)
- State v. Williams, 364 Wis. 2d 126 (2015) (compare evidence to instructions when instructions accurately state law)
- State v. Hubbard, 313 Wis. 2d 1 (2008) (discusses definition and accepted jury language for "under the influence")
- State v. Badzinski, 352 Wis. 2d 329 (2014) (two‑part test for deficient jury instruction: ambiguity plus reasonable likelihood jury applied it to relieve State’s burden)
- State v. Burris, 333 Wis. 2d 87 (2011) (articulates reasonable‑likelihood standard for instructional error)
- Waddington v. Sarausad, 555 U.S. 179 (2009) (Supreme Court decision endorsing the reasonable‑likelihood standard for jury instructions)
- In re Winship, 397 U.S. 358 (1970) (constitutional requirement that guilt be proved beyond a reasonable doubt)
- State v. Henning, 273 Wis. 2d 352 (2004) (Double jeopardy bars retrial when conviction is overturned for insufficient evidence)