State v. Zeiner, 515 P.3d 736

At ~3:15 a.m. a passerby found Ty Zeiner asleep in the driver’s seat of his white SUV parked on the side of a gravel road; the engine had been running when first seen but was off when Deputy Starkey arrived; headlights and radio remained on and Zeiner made no attempt to move the vehicle.
Deputy Starkey awakened Zeiner, detected alcohol on his breath, administered field sobriety tests (Zeiner failed), and later obtained three breath samples (.134 and .145 were recorded as deficient samples).
A sealed beer and an empty beer plus matching bottlecaps were found in the vehicle. Zeiner said he had consumed alcohol earlier that evening; there was no direct evidence about his sobriety while driving earlier that night.
Zeiner was charged with DUI under K.S.A. 2021 Supp. 8-1567(a)(1) (BAC) and (a)(3) (incapable of safely driving), and an open-container offense; the jury convicted on the DUI counts and acquitted on the open-container count.
The district court used a PIK instruction that said the defendant must have "operated or attempted to operate" the vehicle; Zeiner objected and requested an instruction defining "operate" as "drive." The district court denied the request.
The Kansas Supreme Court held the instruction was legally erroneous for failing to define "operate" as "drive," found the error not harmless beyond a reasonable doubt (despite concluding the evidence was sufficient), reversed the (a)(3) conviction, and remanded for a new trial with proper instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meaning of "operate" in the DUI statute	"Operate" can include using lights/radio/heater while parked	"Operate" is synonymous with "drive" and requires vehicle movement	"Operate" = "drive"; "attempt to operate" = attempt to move the vehicle (error to omit this definition)
Whether court may modify PIK instruction	PIK language is sufficient; no modification required	Court may and should modify PIK to clarify legal terms given facts	Courts may modify or clarify PIK; here the requested modification was legally appropriate and should have been given
Harmlessness of instructional error	Error was harmless because Zeiner admitted he drove earlier and evidence showed intoxication then	Error not harmless because jury could have convicted based on "operating" while parked given prosecutor and witness statements	Error was not harmless beyond a reasonable doubt; conviction reversed and remanded for new trial
Sufficiency of evidence that defendant drove while intoxicated	Circumstantial evidence (admission of drinking, beer in car, smell, failed tests, breath results) supports conviction	No direct evidence he was intoxicated while driving earlier; inference required	Evidence was sufficient to support a conviction, but instructional error still required reversal

State v. Darrow, 304 Kan. 710, 374 P.3d 673 (2016) (held "operate" is synonymous with "drive" and an "attempt to operate" means attempting to move the vehicle)
State v. Murrin, 309 Kan. 385, 435 P.3d 1126 (2019) (standards for reviewing jury-instruction claims)
State v. Butler, 307 Kan. 831, 416 P.3d 116 (2018) (instructions must fairly state the law; PIK is recommended but may be modified)
State v. Dixon, 289 Kan. 46, 209 P.3d 675 (2009) (district courts may modify or clarify PIK instructions based on case facts)
State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012) (harmless-error standards and effect on substantial rights)
State v. Fish, 228 Kan. 204, 612 P.2d 180 (1980) (proof of driving may be established by circumstantial evidence)