April 30, 2014
STATE OF OREGON, Plaintiff-Respondent,
LES BERNARD BERNING, Defendant-Appellant
Argued and Submitted January 22, 2014.
Douglas County Circuit Court. 11CR0063MI. William A. Marshall, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Hadlock, Presiding Judge, and Sercombe, Judge, and Tookey, Judge.[*]
[262 Or.App. 588] PER CURIAM
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) (Count 1), ORS 813.010; reckless driving (Count 2), ORS 811.140; and two counts of criminal mischief in the second degree (Counts 7 and 8), ORS 164.354. At trial, the state presented evidence that defendant took pain medication on the day of his arrest, but the state failed to identify that medication or offer evidence that the medication made defendant more susceptible to the effects of alcohol. Over defendant's objection, the trial court gave the jury an instruction based on State v. Miles, 8 Or.App. 189, 196-97, 492 P.2d 497, rev den (1972), as follows:
" If you find from the evidence that [defendant] was in such a physical condition that he was more susceptible to the influence of intoxicants than he would otherwise be, and as a result of being in that physical condition [defendant] became under the influence of a lesser quantity of intoxicants than [it] would otherwise take [defendant] is nevertheless Under the Influence of Intoxicants."
On appeal, defendant argues, and the state concedes, that the trial court erred in giving the Miles instruction and that the error requires reversal of defendant's DUII conviction. We agree and accept the state's concession. See State v. Rich, 259 Or.App. 655, 656, 314 P.3d 979 (2013) (reversing and remanding for a new trial where " there was no evidence from which the jury could find that [the] defendant's physical condition exacerbated the effects of alcohol because evidence that [the] defendant took pain medication for a bad knee was insufficient, without more, for the jury to make such an inference" (internal quotation marks omitted)).
Defendant also argues, without citation to any authority, that the trial court's error requires reversal of his convictions for reckless driving and second-degree criminal mischief. We reject that argument without discussion.
Reversed and remanded on Count 1; otherwise affirmed.