OUJI-CR 6-18

DRIVING A MOTOR VEHICLE

(WHILE UNDER THE INFLUENCE OF ALCOHOL)/(WITH ALCOHOL

CONCENTRATION OF .08 OR MORE) - ELEMENTS

No person may be convicted of driving a motor vehicle (while under the influence of alcohol)/(with a blood/breath alcohol concentration of .08 or more) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, driving;

Second, (with a blood/breath alcohol concentration of 0.08 or more)/(while under the influence of alcohol);

Third, a motor vehicle;

Fourth, on a (public road/street/highway/turnpike/place)/(private road/street/alley/lane which provides access to one or more single or multi-family dwellings) ;

[Fifth, the blood/breath alcohol test was administered on a sample taken from the defendant (within 2 hours after arrest)/(as soon as practical after the fatality/injury accident).]

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Statutory Authority: 47 O.S. 2011, §§ 11-101, 11-902.

Notes on Use

The Fifth Element should be read only for prosecutions under 47 O.S. 2011, § 11-902(A)(1). Read literally, section 11-902(A)(1) would make it a crime for a person to have a blood or breath alcohol concentration of .08 or more at the time of a test administered within two hours after a person's arrest, even if the arrest occurred long after the person had ceased driving and there was evidence that the person had consumed additional alcohol between the driving and the time of the test. To avoid such a result, the Committee has drafted the instruction to require a nexus between the driving and the excessive blood or breath alcohol concentration. In Sanders v. State, 2002 OK CR 42, ¶ 15, 60 P.3d 1048, 1050, the Oklahoma Court of Criminal Appeals held that section 11-902(A)(1) applied in a situation where a defendant is arrested at an accident scene or soon after an accident, but not where the arrest occurs long after the accident.

Driving under the influence of alcohol must be defined if the prosecution is under 47 O.S. 2011, § 11-902(A)(2). Bernhardt v. State, 1986 OK CR 76, ¶ 4, 719 P.2d 832, 833 . For the definition of "under the influence," see OUJI-CR 6-35, infra. The Bernhardt case also held that driving while impaired is a lesser included offense for driving under the influence of alcohol. 1986 OK CR 76, ¶ 3, 719 P.2d at 833.

The instruction on sentencing (see OUJI-CR 10-13, infra) should include the sentencing options for alcohol treatment and community services that are provided for in 47 O.S. 2011, § 11-902(A)(1). See Hicks v. State, 2003 OK CR 10, ¶ 4, 70 P.3d 882, 883.