SEQ CHAPTER \h \r 1CR30-181 04/07/08

 

DUI: CRIMINAL REFUSAL TO TAKE EVIDENTIARY TEST – 23 V.S.A. § 1201(b)

 

The State has charged (Def)_______________ with criminal refusal to take an evidentiary test, 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 motor vehicle;

(3) on a highway;

(4) (Def)_______________ was stopped by a law enforcement officer and asked to submit to an evidentiary test of [his] [her] alcohol concentration;

(5) at the time of the request, the officer had reasonable grounds to believe that (Def)_______________ had been operating a motor vehicle on a highway, and that [he] [she] was under the influence of intoxicating liquor;

(6) the officer’s request for an evidentiary test was reasonable under the circumstances;

(7) (Def)_______________ refused to submit to an evidentiary test; and

(8) (Def)_______________ had previously been convicted of driving a motor vehicle on a highway while under the influence of intoxicating liquor.

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 motor 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 definition of motor 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 fourth essential element is that (Def)_______________ was stopped by a law enforcement officer and asked to submit to an evidentiary test of [his] [her] alcohol concentration.  The term law enforcement officer means any state police officer, sheriff, deputy sheriff, special deputy sheriff, municipal police officer, constable, game warden, or other person authorized to make an arrest.  The officer must have been certified by the Vermont Criminal Justice Training Council.  An evidentiary test means a scientific analysis of either breath or blood, which may be introduced as evidence in a court proceeding.  Alcohol concentration means either the grams of alcohol per 100 milliliters of blood, or the grams of alcohol per 210 liters of breath.

The fifth essential element is that, at the time of the request, the officer had reasonable grounds to believe that (Def)_______________ had been operating a motor vehicle on a highway, and that [he] [she] was under the influence of intoxicating liquor [or other substance].  Reasonable grounds means that the officer had made specific observations, reasonably supporting an inference that (Def)_______________ had been operating a motor vehicle while [he] [she] was under the influence of intoxicating liquor [or other substance].  The term intoxicating liquor includes liquor, beer, wine, or any combination of those beverages.  A person is under the influence of intoxicating liquor if [his] [her] full mental or physical abilities are diminished or affected in the slightest degree by intoxicating liquor. [A person is under the influence of drugs, or a combination of alcohol and other drugs, if [his] [her] full mental or physical abilities are impaired or affected by the drugs, or by the combination.]  An influence of intoxicating liquor [or other substance] may be proven by evidence of observable behavior, indicating that (Def)_______________ had consumed alcohol and ceased to retain full control, even to the slightest degree, over the faculties of mind or body.

You may consider testimony by any witness who personally observed (Def)_______________.  Relevant observations may include [his] [her] manner of driving or walking, [his] [her] speech, the condition of [his] [her] eyes, the odor of [his] [her] breath, and any other physical appearance or conduct which would reasonably tend to prove [his] [her] condition.  The witness making the observations need not have any special scientific training.  A layperson may testify about his or her observations, and the witness may express an opinion about the state of (Def)_______________’s sobriety.  It is up to you to judge the weight to be given any such testimony.

The sixth essential element is that the officer’s request for an evidentiary test was reasonable under the circumstances.  The officer must have had reasonable grounds to believe that (Def)_______________ had been operating a motor vehicle on a highway, and that [he] [she] was under the influence of intoxicating liquor [or other substance].

The seventh essential element is that (Def)_______________ refused to submit to an  evidentiary test.  To refuse means to deny, decline or reject the officer’s request.  A person may refuse in actions or in words.  A refusal may consist of words or actions expressing an unwillingness to comply.  You may find that (Def)_______________ refused to submit to an evidentiary test if [he] [she] responded to the officer’s request by communicating a clear unwillingness to take the test.

The last essential element is that (Def)_______________ had previously been convicted of driving a motor vehicle on a highway while under the influence of intoxicating liquor, under 23 V.S.A. § 1201.  To be convicted of a crime means to be found guilty and sentenced.  Here the State alleges that (Def)_______________ was previously convicted of driving while under the influence of intoxicating liquor, under 23 V.S.A. [§ 1201(a)(1)] [§ 1201(a)(2)] [§ 1201(a)(3)], on (date)_______________.

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.