and submitted July 31, 2018
Yamhill County Circuit Court 14CR10143; Cynthia L. Easterday,
J. Kimbrell, Deputy Public Defender, argued the cause for
appellant. On the briefs were Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, and Sara F. Werboff,
Deputy Public Defender, Offce of Public Defense Services.
L. Jenkins, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
Summary: Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants, contending that
the trial court erred in providing a Miles jury instruction.
Held: The trial court erred. The record contained no
evidence tying defendant's prior injuries and tiredness
to an increased susceptibility to the effects of an
intoxicating substance. Giving the Miles instruction in the
absence of such evidence was likely to mislead the jury and
was, therefore, reversible error.
on Count 2 reversed and remanded; otherwise affirmed.
Or.App. 499] MOONEY, J.
appeals from a judgment of conviction for driving under the
influence of intoxicants (DUII),  raising four assignments of
error. We reject his second, third, and fourth assignments
without discussion and write only on the first assignment in
which defendant contends that the trial court erred in
providing a Miles jury instruction. We agree that the
record was void of evidence to support that instruction and
therefore reverse and remand for a new trial.
review jury instructions for errors of law. State v.
Pierce, 235 Or.App. 372, 374, 232 P.3d 978 (2010).
"In determining whether an instructional error requires
reversal, we assess potential prejudice by considering the
jury instructions as a whole." Id. "[A]n
instruction is appropriate if it correctly states the law and
is supported by evidence in the record, when the evidence is
viewed in the light most favorable to the party requesting
the instruction," in this case the state. State v.
Ashkins, 357 Or. 642, 648, 357 P.3d 490 (2015). We state
the facts consistently with that standard.
evening of June 7, 2014, a civilian reported that he observed
defendant driving abnormally. Officer Elliott responded to
the report and pulled defendant over for speeding. When
Elliott contacted defendant, he asked for defendant's
driver's license, registration, and proof of insurance.
While speaking with defendant, Elliott noticed that
defendant's pupils were "very constricted," he
had "visible open sores" on his arm, and his
movements were "slow and kind of deliberate."
Elliott believed that defendant was under the influence and
requested that he perform field sobriety tests (FST).
Defendant agreed and performed the horizontal gaze nystagmus
test (HGN), the walk-and-turn test, and the one-leg-stand
test. Defendant did not exhibit any "clues" of
intoxication on the HGN test or the one-leg-stand test. On
the walk-and-turn test, however, defendant exhibited seven of
eight clues of intoxication. Based on his observations of
defendant and defendant's performance [301 Or.App. 500]
during the FSTs, Elliot believed that defendant "was
under the influence of an intoxicant and that he was
impaired." During the stop, Elliot also discovered that
defendant was wearing a Fentanyl patch and that there were
prescription pill bottles for hydrocodone-acetaminophen and
oxycodone-acetaminophen in his car. Elliott arrested
defendant and took him to the police station, where Detective
McMullen performed a drug recognition expert (DRE)
evaluation. McMullen ultimately concluded that defendant was
"too impaired to operate a vehicle."
test showed the presence of methamphet-amine and its
metabolite, amphetamine; hydrocodone and its metabolite,
dihydrocodeine; gabapentin; and methocar-bamol. Edgardo
Basaca, a forensic scientist with the Oregon State Police
Forensic Laboratory, testified that gabapentin and
methocarbamol are central nervous system (CNS) depressants,
methamphetamine is a CNS stimulant, and hydrocodone, and its
metabolite dihydrocodeine, are narcotic analgesics.
the state rested, defendant testified that he was injured in
a car accident in 2004, which affected his ability to walk
and balance, that he had only slept "for a couple of
hours" the night before he was arrested, and that he
"just didn't feel right" when he woke up. He
worked that day and, on his way home, he felt tired and
thought about stopping to sleep, but ultimately chose not to
close of evidence, the trial court informed the parties that
it would provide Uniform Criminal Jury Instruction 2708, also