Defendant appeals his conviction for driving under the influence of intoxicants (DUII). After defendant’s trial to the court, the court read a jury instruction based on
State v. Miles,
One evening around 8:00 р.m., a witness saw defendant, driving a pickup truck, pull out of a driveway onto Highway 26 and begin driving very erratically. The witness called 9-1-1 and followed defendant when he got off at the next exit. Defendant parked at a store and went inside. While he was inside, police officers came to the scene. When defendant came out of the store, an offiсer spoke with defendant and then arrested him and charged him with DUII.
At trial, the arresting officer testified that defendant was wearing dirty, disheveled clothing, his speech was thick and slurred, his eyеs were glassy and bloodshot, he was stumbling and had a strange gait, and he smelled strongly of alcohol. Although the officer initially had difficulty communicating with defendant, whose hearing is significantly impaired, defendant eventually said that he had had a few drinks.
Four witnesses, including defendant, testified for the defense. Their testimony indicated that, at the time of the arrest, defendant, whо was then 71 years old, was suffering from low blood pressure and dizziness as a result of medication that he had been prescribed. Defendant’s daughter testified that defendant’s doctors subsequently decreased his dosage and, as a result, his condition had improved significantly. Witnesses also testified that defendant’s speech is sometimes slurred as a result of his hearing loss, that he walks with an unsteady gait and has poor balance as a result of back and leg injuries, and that physical exhaustion affects his mobility. Defendant testified that, on the dаy of his arrest, he had been cutting brush all day, he had been feeling progressively worse throughout the day, and he had one and one-half drinks before and during his dinner.
In closing argument, the prosecutor speculated that a combination of defendant’s medical issues and alcohol caused his impairment:
“We also know that [defendant] was taking some mediсation that was adversely affecting him in May [when he was arrested]. That, of course, is problematic, and my suspicion is, is that whatever alcohol he consumed that evening was only complicated by the medical issues that he was already suffering from at that time.”
“Now, contrary to what Counsel may have said, I think a Miles instruction would have been appropriate in this case, and let me read that to you so you understand where I’m going here. It says, ‘If you find from the evidence that the defendant was in such a physical condition that he was more susceptible to the influence of intoxicants than hе would otherwise be, and as a result of being in that physical condition, because of the influence of a lesser quantity of intoxicants than it would otherwise take, he is still, neverthеless, under the influence of intoxicants.’
“* * * Now, I have no doubt in my mind that you were working hard on this occasion, but you, yourself, indicated that after you had been drinking and you got back in that truck, that you were woozy, and you shouldn’t have been driving.
“And, my God, when we’ve got the testimony of an eyewitness, [that defendant veered across two lanes and back, onto the shouldеr, almost hitting a pole], that’s pretty bad driving, partner. That’s pretty bad driving.
“Now, today * * *, I heard no mumbling. You may have been a quiet talker, but you’re not a mumbler. I didn’t see you stumble. I didn’t see you — your speech was certainly not slurred; I understood every word that you said to me. I didn’t see you shuffling. * * *
“* * * And, you know, [the officer] described what he saw, and he also described, you know, a really strong odor of alcohol, which indicates that you’d just recently drank, which is kind of exactly what you’re telling us here.
“Now, I think, given on any other occasions, you may have been able to have had three or four and not had any problem driving, but you certainly had a problem driving on this occasion.”
(Emphasis added.)
Defendant appeals the resulting judgment, arguing that the trial court erred in aрplying the
Miles
instruction. This court has repeatedly held that, in order for that instruction to be proper, “there must be evidence that [the defendant’s physical condition] made [the] defendant more susceptible to the effects of alcohol than he otherwise would have been[.]”
State v. Huck,
The state does not dispute that, given that eviden-tiary void, the trial court’s use of the Miles instruction was inapposite. Instead, it asserts that any error was harmless and, as a result, does not merit reversal. We disagree.
Insofar as the state argues that the trial сourt did not actually rely on the
Miles
instruction in its analysis, the court’s explanation of its verdict, quoted above, demonstrates
As we have explаined in the context of a jury trial, in the absence of evidence that a defendant’s physical condition made him more susceptible to the effects of alcohоl, “the instruction [is] likely to mislead the jury to [the] defendant’s prejudice and, therefore, it should not [be] given.”
Huck,
Finally, the state argues that, if we reverse this case, we should “remand the case to the trial court for reconsideration to determine, based on the record already adduced, whether defendant was guilty of DUII.” As authority for that argument, it cites
Wilson,
Reversed and remanded.
Notes
We note that, if defendant’s medication was a controlled substance, the trial court’s reliance on the
Miles
instruction in this case was also erroneous under
State v. McFeron,