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State v. Snyder

Court of Appeals of Oregon

September 27, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
TERRENCE A. SNYDER, Defendant-Appellant.

          Argued and submitted February 27, 2017.

         Lane County Circuit Court 201301966; Josephine H. Mooney, Judge.

          Laura 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 Services.

          Jacob 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.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

         Case 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.

         [288 Or. 59]

          SHORR, J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010.[1]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 affirm.[2]

         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).

         Oregon 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.[3]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).

         [288 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.

         On 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.

         We 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.[4] [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 ...


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