278 P.3d 130
Or. Ct. App.2012Background
- Massey was convicted of DUII after a bench trial in which the court used a Miles instruction to explain its reasoning for guilt.
- An eyewitness observed Massey driving erratically on Highway 26; 911 was called and Massey followed to a later exit before being arrested.
- Arresting officer testified Massey wore disheveled clothing, spoke with a thick/slurred speech, had glassy eyes, a strong odor of alcohol, and stumble by a store door.
- Defendants presented four witnesses (including Massey) who testified Massey, age 71, had low blood pressure and dizziness from prescribed medication; some witnesses noted slurred speech due to hearing loss and poor balance from injuries.
- Defendant testified he had one and a half drinks that day and felt worse as the day progressed; the defense argued illness/medication—not intoxication—caused impairment.
- Prosecutor suggested a theory that medical issues plus some alcohol could cause impairment; the defense objected and invoked Miles, which the court overruled and adopted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miles instruction was proper here | State: physical condition evidence existed via medical issues and age, supporting Miles. | Massey: no evidence the condition increased susceptibility to alcohol. | Miles instruction improper; reversible error; remand for new trial. |
| If erroneous, whether remand for a new trial is appropriate | State: remand appropriate to reconsider guilt with record already adduced. | Massey: no direct alternative; standard remand for new trial. | Remand for a new trial. |
Key Cases Cited
- State v. Huck, 100 Or. App. 193 (1990) (Miles instruction requires evidence of increased susceptibility)
- State v. Gibbs, 193 Or. App. 296 (2004) (Miles instruction improper absent increased susceptibility)
- State v. Curtis, 182 Or. App. 166 (2002) (Miles instruction inappropriate with fatigue as condition)
- State v. Roller, 181 Or. App. 542 (2002) (Miles instruction reversed where no susceptibility evidence)
- Babler Bros. v. Pac. Intermountain, 244 Or. 459 (1966) (verdict infected when wrong law applied by trial court)
- State v. Wilson, 240 Or. App. 475 (2011) (reversal where trial court erred despite sufficient evidence)
- State v. Andrews, 174 Or. App. 354 (2001) (remand for new trial where error occurred)