CR30-051 03/08/19

 

DUI: ALCOHOL CONCENTRATION OF 0.08 OR MORE -- 23 V.S.A. 1201(a)(1)

 

The State has charged (Def)_______________ with [operating] [attempting to operate] [being in actual physical control of] a vehicle when [he] [she] had an alcohol concentration of 0.08 or more, as follows:

[Read the charge.]

Every crime is made up of essential elements. Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt. In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) [operated] [attempted to operate] [was in actual physical control of] a vehicle;

(3) on a highway; and

(4) [he] [she] did so while [he] [she] had an alcohol concentration of 0.08 or more.

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ [operated] [attempted to operate] [was in actual physical control of] a vehicle.

[The term operate, as applied to motor vehicles, includes driving, and it also includes an attempt to operate. The word operate covers all matters and things connected with the presence and use of motor vehicles on the highway, whether they are in motion or at rest. Operation may be shown by a person sitting behind the wheel of a motor vehicle, with the engine running. It may also be shown by a person attempting to move the vehicle, whether or not the engine is running.]

[An attempt to operate is included within the definition of operate. The State must have proven an open, physical act by (Def)_______________ coupled with an intent to operate the vehicle. You must distinguish between mere preparation and the actual start of the criminal conduct. An act is sufficient to be an attempt to commit the offense if the act is wilful and knowing, and if it progresses far enough to be the beginning of the crime. The act must be part of a series of events which would lead to the completion of the crime, if not interrupted. An act is done wilfully if it is done on purpose, and not inadvertently, because of mistake, or by accident. Here the State alleges that (Def)_______________ attempted to operate the vehicle, by (specific acts)_______________.]

[The term actual physical control means that (Def)_______________ was in a position to regulate the movement of the vehicle. Actual physical control may have existed whether or not the vehicle was moving, and whether or not the engine was running, if (Def)_______________ had the immediate ability to operate the vehicle.]

The term vehicle includes all vehicles propelled or drawn by power other than muscular power [except tractors used entirely for work on the farm, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, all-terrain vehicles or implements of husbandry, or tracked vehicles].

The third essential element is that the activity took place on a highway. The term highway is defined to include all parts of any roadway, street, bridge, culvert, [square, fairground] or other place open temporarily or permanently to public or general circulation of vehicles [and it also includes a way laid out under authority of law].

The last essential element is that, at the time, (Def)_______________ had an alcohol concentration of 0.08 or more.

The term alcohol concentration means either (A) the number of grams of alcohol per 100 milliliters of blood, or (B) the number of grams of alcohol per 210 liters of breath.

This last essential element does not require proof that (Def)_______________ was under the influence of intoxicating liquor. Instead, it requires proof by way of breath or blood analysis that, when (Def)_______________ [operated the vehicle] [attempted to operate the vehicle] [was in actual physical control of the vehicle], [his] [her] alcohol concentration was 0.08 or more. This last element requires you to consider both (1) the accuracy and trustworthiness of the test, and (2) the relation back of the test result, from the time of the sample to the time of the [operation] [attempt to operate] [actual physical control].

The State has presented evidence in this case indicating that a [breath] [blood] analysis was undertaken to establish (Def)_______________s alcohol concentration. You may consider the analysis to be valid if it was performed according to the method or methods selected by the Vermont Department of Public Safety, but you are not required to find the analysis to be valid. Instead, you should determine from all the evidence whether you consider the test result to be valid in this case.

If you find that the test result was not valid, then you should not further consider the test evidence. If you find that the test result was valid and accurate, then you still must consider whether the State has proven that (Def)_______________ had an alcohol concentration of 0.08 or more at the time of [operation] [the attempt to operate] [the actual physical control]. The essential element to be proven is the alcohol concentration at the time of the [operation] [attempt to operate] [actual physical control]. The State must have proven how the test result relates back to the time of operation. In considering these issues, you may consider the testimony of the expert witness[es] with respect to absorption and elimination rates of alcohol.

If you find it relevant, you may also consider any evidence you may have heard concerning whether (Def)_______________ was under the influence of intoxicating liquor. Such evidence may include any observations of conduct, breath odor, speech, or any operation of the vehicle. You need not determine whether (Def)_______________ was under the influence of intoxicating liquor, but you may consider this evidence on the essential question, which is whether or not (Def)_______________s alcohol concentration was 0.08 or higher at the time of the [operation] [attempt to operate] [actual physical control].

All of the elements of the offense must have been present at the same time. If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must find (Def)_______________ not guilty. However, if the State has proven all of the essential elements beyond a reasonable doubt, you must return a verdict of guilty.