and submitted February 27, 2017.
County Circuit Court 201301966; Josephine H. Mooney, Judge.
E. Coffn, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Brown, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior
Summary: Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010. Defendant argues that the trial court erred when it
refused to give the jury an instruction on attempted DUII,
based on a theory of attempted intoxication. The state
responds that that instruction has no valid legal basis
because the intoxication element of DUII describes only a
status that a driver has or has not obtained, and that status
elements are not susceptible to liability for attempt.
Held: The trial court did not err by refusing to
give the attempted-DUII instruction. Liability for criminal
attempt requires intentional conduct. ORS 161.405(1).
Defendant's level of intoxication, however, is a question
of status, which exists regardless of conduct.
appeals a judgment of conviction for driving under the
influence of intoxicants (DUII). ORS 813.010.He assigns error
to the trial court's refusal to instruct the jury on
attempted DUII, based on a theory of attempted intoxication.
We conclude that the trial court did not err when it refused
to give the requested instruction. Therefore, we
state the facts in the light most favorable to the party that
requested the instruction. State v. Taylor, 207
Or.App. 649, 666, 142 P.3d 1093 (2006).
State Trooper Matthews pulled over defendant for failing to
bring his vehicle to a full stop at a stop sign. After being
pulled over, defendant told Matthews he had had five or six
beers at a local tavern from 6:30 to 10:30 p.m. Matthews
smelled a strong odor of alcohol from defendant, who had
watery eyes and a flushed face. Defendant voluntarily
submitted to field sobriety tests. Matthews observed six out
of six clues of impairment on the horizontal gaze nystagmus
test, three out of eight clues on the walk-and-turn test, and
none on the one-leg stand test. Matthews ultimately arrested
defendant for DUII and took him to the Lane County Jail.
Approximately an hour and a half after his arrest, defendant
had a .09 percent blood alcohol concentration (BAC) based on
the results of two breath samples taken at that time. The
first sample registered a .091 percent BAC. The second
sample, provided approximately four minutes later, registered
a .101 percent BAC.A person commits DUII by, among other
things, driving a vehicle with a BAC of .08 percent or higher
or driving "under the influence of intoxicating
liquor." ORS 813.010 (1)(a), (b).
Or. 60] The state charged defendant with DUII. At trial,
defendant requested that the court instruct the jury on the
lesser-included offense of attempted DUII. Defendant argued
that, due to the fact that his BAC tests appeared to show
that his BAC was gradually increasing, his BAC may not have
been over the legal limit when he was actually stopped and
arrested. As a result, he argued that he might have only
attempted to be under the influence of intoxicants. In
support, defendant cited State v. Baty, 243 Or.App.
77, 259 P.3d 98 (2011), a DUII case in which we concluded
that, where there was evidence from which the jury could find
that the defendant had not begun to drive when stopped by the
police, the trial court should have given the defendant's
requested attempted-DUII instruction. In this case, the trial
court rejected defendant's argument and refused to give
defendant's requested instruction. The jury later found
defendant guilty of DUII.
appeal, defendant reiterates the arguments he made below as
to why he was entitled to have the trial court give his
requested attempted-DUII instruction. The state responds that
the court did not err, because that instruction has no valid
legal basis. The state argues that the intoxication element
of DUII describes only a status that a driver either has or
has not obtained, and that the elements describing a
defendant's status are not susceptible to liability for
attempt. Thus, in the state's view, defendant was not
entitled to an attempted-DUII instruction.
review the trial court's refusal to give a requested jury
instruction for legal error. See State v. Barnes.329 Or. 327, 333, 986 P.2d 1160 (1999). As a general rule, if
there is evidence to support it, a defendant may offer, and
the trial court must give, an instruction to the jury that
"the defendant may be found guilty of * * * an attempt
to commit [the] crime" with which the defendant is
charged. ORS 136.465. [288 Or. 61] However, a trial court may
refuse a requested jury instruction if the instruction does
not accurately state the law as it applies to the case.
Barnes, 329 Or at 334. We conclude that the
requested instruction in this ...