- June 24, 2018 |
- Category: DUI and Courtroom Process
- Category: Past Cases
When a DUI suspect takes an impairment case to trial under RC 4511.19(A)(1)(a), there are a number of rules that regulate how the trial proceeds and what evidence can be presented to the jury. In addition, there are Ohio DUI jury instructions that help members of the jury understand the relevant law, and ultimately, make a decision on the DUI suspect’s guilt or innocence. The judge reads the Ohio DUI jury instructions, in open court, at the conclusion of the trial and then typically provides the jury with a copy of the instructions so they can be used as a reference during deliberation.
In giving the Ohio DUI jury instructions, the judge will state the issues in the case and define any terms or words that may not be familiar to the jurors. He will discuss the standard of proof that jurors should apply to the case – “beyond a reasonable doubt” in an Ohio DUI case. The judge will also read sections of the DUI statute – RC 4511.10(A)(1)(a), breaking it down into the elements that the government is required to prove beyond a reasonable doubt.
The judge will advise the jury that it is the sole judge of the facts and of the credibility of the witnesses who testified at the trial. The Ohio DUI jury instructions will inform the jurors that they are to reach their decision on the evidence presented at trial, and that the opening and closing arguments presented by the lawyers are not evidence. The judge will point out that the Ohio DUI jury instructions contain the interpretation of the relevant Ohio DUI laws that govern the case, and that jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law ought to be.
DUI trials in Ohio contains a standardized set of Ohio DUI jury instructions. However, Ohio law allows both the prosecuting attorney and defense attorney to request that additional specific instructions be included in the Ohio DUI jury instructions. After listening to both sides, the judge makes the final decision about whether to include the requested instructions. At the conclusion of deliberation, the jurors determine the facts of the case, apply the relevant law as dictated by the judge, and ultimately issue a verdict of guilty or not guilty.
Following are standard Ohio DUI jury instructions used by the trial courts when a DUI suspect takes an impairment case to trial under RC 4511.19(A)(1)(a):
OHIO DUI JURY INSTRUCTION #1
1. The defendant is charged with operating a (vehicle) (streetcar) (trackless trolley) while under (the influence of alcohol) (the influence of a drug of abuse) (the combined influence of alcohol and a drug of abuse). Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the ________________ day of ________________, ________________, and in ________________ County (other jurisdiction), Ohio, the defendant operated a (vehicle) (streetcar) (trackless trolley) while under (the influence of alcohol) (the influence of [specify drug of abuse]) (the combined influence of alcohol and [specify drug of abuse]).
OHIO DUI JURY INSTRUCTION #2
2. OPERATE. The term “operate” means to cause or have caused movement of a (vehicle) (streetcar) (trackless trolley).
OHIO DUI JURY INSTRUCTION #3
3. VEHICLE. R.C. 4511.01(A). “Vehicle” means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, any personal delivery device as defined in section 4511.513 of the Revised Code, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.
OHIO DUI JURY INSTRUCTION #4
4. ALCOHOL. R.C. 4301.01(B)(1). “Alcohol” means ethyl alcohol, whether rectified or diluted with water or not, whatever its origin may be, and includes synthetic ethyl alcohol. “Alcohol” does not include denatured alcohol and wood alcohol.
OHIO DUI JURY INSTRUCTION #5
5. DRUG OF ABUSE. You are instructed that (specify drug of abuse) is a drug of abuse.
COMMENT
The classification of a particular substance as a drug of abuse is a question of law. The identity of a particular substance, whether or not the defendant had ingested that substance and its affect, if any, upon him are questions of fact. For the definition of “drug of abuse” see R.C. 2925.01(B), 3719.01, 3719.011(A), 3719.41 and 4729.01(E).
OHIO DUI JURY INSTRUCTION #6
6. UNDER THE INFLUENCE. “Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person. The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence.
OHIO DUI JURY INSTRUCTION #7
7. CHEMICAL ANALYSIS (OPTIONAL).
(Use appropriate alternative)
(A) Evidence of a (breath) (blood) (urine) test administered to the defendant may only be considered as evidence indicating whether the defendant had or had not consumed some alcohol. You may not, on the basis of the test alone, conclude or infer that the defendant was or was not under the influence of alcohol.
COMMENT
Testimony that an analysis of breath, blood or urine reflected the presence of alcohol in the defendant’s system may be admitted into evidence for the limited purpose of proving that the accused had, in fact, consumed alcohol. This testimony may be admitted without expert testimony. The court may be required to give instructions advising the jury of the limited purpose and application of this evidence.
(B) Evidence of a (breath) (blood) (urine) test administered to the defendant may be considered along with all other evidence in determining whether the defendant was or was not under the influence of (alcohol) (drug of abuse) (alcohol and a drug of abuse).
COMMENT
A chemical test result may be admissible in an R.C. 4511.19(A)(1) prosecution when the same test is not admissible in a prosecution under R.C. 4511.19(A)(2), (3) or (4). Newark v. Lucas (1988), 40 Ohio St.3d 100, 532 N.E.2d 130.
An actual test result offered to prove that the defendant was or was not under the influence would be admissible only upon the offering party presenting expert testimony to explain the meaning of the test result to the jury. State v. Szulc (Dec. 29, 2000), Erie App.No. E-00-021, unreported; State v. Scheurell (1986), 33 Ohio App.3d 217, 515 N.E.2d 629; State v. Bakst (1986), 30 Ohio App.3d 141, 506 N.E.2d 1208.
OHIO DUI JURY INSTRUCTION #8
8. EXPERT WITNESS AND HYPOTHETICAL QUESTION (OPTIONAL). OJI-CR 409.21.
(A) OPTIONAL. (Generally a witness may not express an opinion.) (However,) One who follows a (profession) (special line of work) may express his opinion because of his education, knowledge and experience. Such testimony is admitted for whatever assistance it may provide to help you to arrive at a just verdict.
(B) HYPOTHETICAL QUESTION. Questions have been asked in which (an) expert witness(es) was (were) permitted to assume that certain facts were true and to give an opinion based upon such assumption. You must determine whether the assumed facts, upon which the expert(s) based his (their) opinion, are true. If any assumed fact was not established, you will determine its effect upon the opinion of the expert(s).
COMMENT
It is error to instruct the jury, “if any assumed fact was not established by a preponderance of the evidence, you will determine the effect of that failure on the value of the opinion of that expert (emphasis added).” A conviction must be based on proof beyond a reasonable doubt, and this instruction confused the jury about the burden of proof. State v. Brown (1982), 7 Ohio App.3d 113, 454 N.E.2d 596. The Committee does not recommend the addition of any reference to the degree of proof needed to establish an assumed fact in a hypothetical question but emphasizes the necessity of clear instructions that the defendant can be found guilty only on proof of every essential element beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.
(C) WEIGHT OF EXPERT TESTIMONY. (However,) As with other witnesses, upon you alone rests the duty of deciding what weight should be given to the testimony of the expert(s). In determining its weight, you may take into consideration his (their) skill, experience, knowledge, veracity, familiarity with the facts of this case, and the usual rules for testing credibility and determining the weight to be given to testimony.
COMMENT
It is reversible error to admit evidence of similarity or likelihood if the expert opinion is not based upon reasonable certainty. State v. Holt (1969), 17 Ohio St.2d 81, 46 O.O.2d 408, 246 N.E.2d 365.
COMMENT
This instruction should be given only if the optional chemical test instruction in subsection 7(B) is used.
OHIO DUI JURY INSTRUCTION #9
9. REFUSAL TO SUBMIT TO TEST (OPTIONAL). Evidence has been introduced indicating the defendant was asked but refused to submit to a chemical test of his/her (blood) (breath) (urine) to determine the amount of (alcohol) (drug of abuse) in his/her system, for the purpose of suggesting that the defendant believed he/she was under the influence of (alcohol) (drug of abuse) (alcohol and a drug of abuse). If you find the defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of (alcohol) (drug of abuse) (alcohol and a drug of abuse).
OHIO DUI JURY INSTRUCTION #10
10. ADDITIONAL FINDING: PRIOR CONVICTION. OJI-CR 425.15.
COMMENT
“When the presence of one or more additional elements (such as a prior conviction) makes an offense one of more serious degree,” the charging document must state the more serious degree or allege the additional element(s) and the verdict shall also state the degree of the offense or that the additional element(s) were present. Otherwise, the charge or verdict, or both, are of the least degree of the offense charged. R.C. 2945.75. These determinations are for the jury. State v. Gordon, 28 Ohio St.2d 45 (1971).
In general, when the prior conviction only enhances the penalty for a subsequent offense but does not raise its degree (as in DUI), the prior conviction is not an element of the subsequent offense. State v. Allen, 29 Ohio St.3d 53 (1987); State v. Buell, 29 Ohio App.3d 215 (1985). Disclosure of the prior DUI to the jury is prejudicial error.
Proof of the prior conviction is furnished by a certified copy of the entry of judgment with evidence sufficient to identify the defendant. R.C. 2945.75(B). An “entry of judgment” must contain the imposed sentence under Crim.R. 32(C). A plea of guilty without the imposition of sentence is insufficient in the absence of any statutory provision. State v. Henderson, 58 Ohio St.2d 171 (1979). Note that a guilty plea when sentence is still pending may be used for impeachment of a witness under Evid.R. 609(A). State v. Cash,
40 Ohio St.3d 116 (1988).
R.C. 2945.75 does not provide the exclusive method of proving prior conviction. A defendant may stipulate to the existence of the prior conviction. State v. Ward, 130 Ohio App.3d 551 (1999). However, when the existence of a prior conviction elevates the degree of the offense, it is an essential element of the offense and may not be bifurcated from the remainder of the elements of the offense. The prosecution must present proof of the prior conviction and the defendant’s stipulation does not change the state’s burden of proof or the role of the jury. State v. Runner, Belmont App. No. 99 BA 36, 2001-Ohio-3263.
A defendant may only attack the prior conviction based on a violation of his right to counsel. A prior uncounseled conviction may not be used to enhance the degree of a subsequent offense if a term of incarceration was imposed. An uncounseled conviction is a conviction in which the defendant was not represented by counsel and did not make a knowing, voluntary, and intelligent waiver of counsel. Thus, a prior conviction may not be used to enhance the degree of a subsequent offense if the defendant was not represented by counsel, did not waive his/her right to counsel, and a term of incarceration was imposed. When the validity of the use of a prior conviction is raised, the court must presume that the underlying proceedings were conducted in accordance with the law and the defendant must introduce evidence to the contrary. Once the defendant asserts that he/she was uncounseled, the burden shifts to the state to prove the defendant was afforded the right to counsel. State v. Bonds, Cuyahoga App. No. 83866, 2004-Ohio-3483.
Crim.R. 44(C) provides that a waiver of counsel shall be in open court and shall be recorded. However, in State v. Vales (Feb. 24, 2000), Cuyahoga App. No. 75653, the court held that a signed waiver form was sufficient to show a valid waiver, even in the absence of a transcript of the proceedings.
A hearing regarding whether a prior conviction was uncounseled is essentially an evidentiary hearing and is held outside the presence of the jury. The issue can be raised by pre-trial motion or by timely objection or motion made during trial. In State v. Daniels, the trial court had found that the prior conviction was uncounseled and dismissed the indictment on the subsequent offense. The appellate court held that if a prior conviction is found to be uncounseled, the court should suppress the evidence and could not amend the indictment to conform to the evidence. State v. Daniels, 61 Ohio App.3d 17 (1988).
(A) PRIOR CONVICTION. (Use appropriate alternative)
COMMENT
The judge should determine whether the enhancement by a prior conviction is limited by a specific statutory period. If so, use alternative (B).
(I) If your verdict is guilty, you will separately decide whether the State proved beyond a reasonable doubt that the defendant was previously convicted of (specify the offense[s]);
(or)
(II) If your verdict is guilty, you will separately decide whether the State proved beyond a reasonable doubt that the defendant was previously convicted of (specify the offense[s]) within (specify appropriate statutory period of time) before (this offense) (the date that you determine this offense) occurred;
COMMENT
This prior conviction instruction should only be given if it is alleged that the defendant has been convicted of a certain offense within a certain date of the offense.
(or)
(III) If your verdict is not guilty, you will not decide this issue.
(B) SAMPLE VERDICT FORMS AS TO PRIOR CONVICTION.
(I) The defendant (*) ________________ previously convicted of (specify the prior offense[s]).
(II) The defendant (*) ________________ previously convicted of (specify the offense[s]) within (specify appropriate statutory period of time) before (this offense) (the date that you determine this offense) occurred.
OHIO DUI JURY INSTRUCTION #11
11. CONCLUSION. OJI-CR 425.01.
(A) SINGLE COUNT. If you find that the state proved beyond a reasonable doubt all the essential elements of the offense of ________________, your verdict must be guilty (as to one or more of the defendants, according to your findings).
(B) If you find that the state failed to prove beyond a reasonable doubt any one of the essential elements of the offense of ________________, then your verdict must be not guilty (as to one or more of the defendants, according to your findings).
This concludes the specific Ohio DUI jury instructions for impairment cases under RC 4511.19(A)(1)(a). There are additional jury instructions that are used in all criminal and traffic cases, however, they are not specific to DUI and they are not included in this post. Such instructions cover a variety of topics including the definition of proof beyond a reasonable doubt, circumstantial evidence and presumption of innocense. They also advise the jury the manner in which they should deliberate upon convening in the jury room. For a full set of Ohio DUI jury instructions, including the general criminal and traffic instructions, please see the Collection of Standard Jury Instructions in Civil and Criminal Cases prepared by the Jury Instructions Committee of the Ohio Judicial Conference.
Title: Ohio DUI jury instructions.
