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State v. Leachman

Court of Appeals of Oregon

June 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ELIZABETH LEACHMAN, Defendant-Appellant.

          Submitted September 30, 2015

         Washington County Circuit Court D121521T Suzanne Upton, Judge.

          Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary: Defendant appeals a judgment convicting her of driving under the infuence of intoxicants (DUII). She assigns error to the trial court's decision to instruct the jury that it could fnd defendant guilty of DUII if it found that she had driven under the infuence of intoxicants, the infuence of a controlled substance, or the infuence of a combination of the two. Defendant contends that, because the state had alleged in the charging instrument that she had driven while "under the infuence of intoxicants, to-wit: intoxicating liquor and controlled substances, " the jury could convict her of DUII only if it found that she had driven under the infuence of both alcohol and a controlled substance, and, hence, that the instruction improperly amended the charging instrument. Held: The form of intoxication is not an element of the crime of DUII. To the extent that the court's jury instruction could be understood to have amended the complaint under which the state had prosecuted defendant, the amendment did not add nor alter an element of the charged crime. Hence, if the instruction amended the complaint, it was an amendment that the trial court had the authority to make.

         Affrmed.

         [285 Or.App. 757] ARMSTRONG, P. J.

         Defendant appeals a judgment convicting her of driving under the influence of intoxicants (DUII), ORS 813.010. She assigns error to the trial court's decision to instruct the jury that it could find defendant guilty of DUII if it found that she had driven under the influence of intoxicants, the influence of a controlled substance, or the influence of a combination of the two. Defendant contends that, because the state had alleged in the charging instrument that she had driven while "under the influence of intoxicants, to-wit: intoxicating liquor and controlled substances, " the jury could convict her of DUII only if it found that she had driven under the influence of both alcohol and a controlled substance, and, hence, that the court erred in instructing the jury otherwise. We conclude that the trial court did not err and affirm.

         A person called 9-1-1 and reported seeing a car being driven against the direction of traffic and into a convenience store parking lot. Officer Will was dispatched to the convenience store to investigate. Will saw the car that the caller had identified leave the parking lot as he arrived. He followed the car and watched it stop at every intersection that its driver encountered, even those at which it was unsafe and unlawful to stop. Will initiated a traffic stop by activating the emergency lights of his patrol car. Defendant stopped her car as directed and identified herself to Will. Will noticed that defendant had bloodshot eyes and that she repeated herself throughout his encounter with her.

         Officer Nunley arrived at the scene while Will was speaking with defendant, and Nunley took over the investigation. Nunley came to believe that defendant was intoxicated. Defendant's answers to Nunley's questions were often unresponsive and contradictory. Furthermore, defendant handed Nunley a debit card when he asked to see her driver's license. Defendant performed field sobriety tests at Nunley's request, and Nunley arrested her after she failed the tests. Before transporting defendant to the police station, Nunley asked her if she had taken any medications. Defendant responded that she had taken Xanax, although it was unclear from her answer whether she had taken it that [285 Or.App. 758] day or the day before. Nunley asked defendant to submit to a breath test at the police station. Defendant agreed to take the test; however, she would not blow into the Intoxilator when Nunley directed her to do that. While in custody, defendant told Nunley that she had consumed two glasses of wine several hours earlier.

         The state charged defendant by complaint with DUII, alleging that defendant "did unlawfully drive *** under the influence of intoxicants, to-wit: intoxicating liquor and controlled substances." The case proceeded to trial. Nunley testified that he believed that defendant had driven while under the influence of alcohol. Will testified that he likewise believed that defendant had driven while under the influence of an intoxicant, but he did not specify whether defendant's intoxication was caused by Xanax or alcohol or a combination of them.

         The trial court discussed its proposed jury instructions with the parties at the conclusion of the state's case. Defendant objected to an instruction that told the jury that it could convict defendant of DUII if it found that she had driven "under the influence of intoxicating liquor and/or a controlled substance." Defendant reasoned that, because the complaint alleged that she had driven "under the influence of intoxicants, to-wit: intoxicating liquor and controlled substances, " the jury could convict her of DUII only if it found that she had driven under the influence of both alcohol and a controlled substance and, consequently, the jury instruction impermissibly allowed the jury to convict her of DUII if it found that she had been under the influence of one intoxicant but not the other. She contended, in other words, that, by including the phrase "intoxicating liquor and controlled substances, " the state had effectively elected to proceed to trial under a theory of combined intoxication, so it was required to prove that defendant was impaired by both alcohol and controlled substances. The trial court rejected defendant's argument and ultimately instructed the jury that it could find defendant guilty of DUII if it found that she had driven under the influence of alcohol, of a controlled substance, or of a combination of the two. The jury convicted defendant of DUII, and the trial entered a judgment of conviction. Defendant appeals the judgment.

         [285 Or.App. 759] It is helpful to begin our discussion with a review of the law on the amendment of charging instruments. A jury instruction can have the effect of amending a charging instrument. State v. Albert,139 Or.App. 236, 243, 911 P.2d 1239, rev den,323 Or. 153 (1996). Generally, a trial court may amend a charging instrument if the amendment involves a change that is one of form rather than substance. See, e.g., State v. Long, 320 Or. 361, 371, 885 P.2d 696 (1994), cert den, 514 U.S. 1087 (1995) (trial court permissibly altered charge through jury instruction when alteration was one of form rather than substance). In determining whether an amendment is substantive, the court considers, among other ...


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