398 P.3d 919
Or. Ct. App.2017Background
- Defendant was charged with DUII alleging she drove “under the influence of intoxicants, to-wit: intoxicating liquor and controlled substances.”
- Officers observed erratic driving and contact with defendant; they noted bloodshot eyes, repetitive speech, failed field sobriety tests, and an admission to taking Xanax and drinking wine several hours earlier.
- Defendant refused to provide a breath sample at the station; officers believed she was impaired by alcohol and/or controlled substances.
- At trial, defendant objected to a jury instruction that allowed conviction if jurors found she was under the influence of alcohol, a controlled substance, or a combination, arguing the charging instrument had alleged combined intoxication only.
- The trial court gave the broader instruction; the jury convicted. Defendant appealed, arguing the instruction improperly amended the complaint by removing an alleged element (combined intoxication).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury instruction permitting conviction for alcohol, controlled substance, or combination effectively amended the charging instrument | State: ORS 813.010 allows alternative means to prove the single element of being under the influence; instruction permissible | Armstrong: Charging instrument alleged combined intoxication, so the state elected that theory and the jury could convict only if both alcohol and controlled substance were proven | The instruction did not impermissibly amend the charge in a substantive way; alternative means are allowed and the trial court did not err |
| Whether the form of intoxication is an element of DUII under ORS 813.010(1) | State: ORS 813.010(1) lists alternative means to satisfy the single element of being under the influence | Armstrong: Separate paragraphs create distinct elements; combined allegation in complaint made form an element | Court: King controls — intoxication form is not a separate element; DUII is one offense with alternative means |
| Effect of ORS 813.010(2) pleading requirement on proof and charging | State: (implicit) ORS 813.010(2) is a pleading/record-keeping provision and does not convert means into elements | Armstrong: Because (2) requires alleging controlled substance use, the state’s complaint alleging combined intoxication constrained proof to that theory | Court: ORS 813.010(2) requires allegation of controlled-substance intoxication for convictions based on that ground, but it does not make the form of intoxication an element; Stiles does not conflict with King |
Key Cases Cited
- State v. Albert, 139 Or. App. 236 (Or. Ct. App. 1996) (jury instruction can effectively amend a charging instrument; amendment allowed if form not substance)
- State v. Long, 320 Or. 361 (Or. 1994) (trial court may alter charge via instruction if change is one of form)
- State v. Wimber, 315 Or. 103 (Or. 1992) (substantive amendments add elements or alter defenses)
- State v. King, 316 Or. 437 (Or. 1993) (DUII is a single offense with alternative means for the intoxication element)
- State v. Stiles, 165 Or. App. 584 (Or. Ct. App. 2000) (ORS 813.010(2) requires controlled-substance allegation to convict on that ground; treated as a pleading/record-keeping requirement)