DUI: Substantive Charges

Reporter’s Note

Under Influence of Intoxicating Liquor. DUI has been heavily litigated over many years.  Although DUI law continues to evolve, the basic elements of DUI under 23 V.S.A. § 1201(a)(2) are well established.

The element of operation is defined broadly under 23 V.S.A. § 4(24).  Operation may consist of turning the ignition switch, State v. Storrs, 105 Vt. 180 (1933), sitting behind the steering wheel with the engine running, State v. Hedding, 122 Vt. 379 (1961), directing the vehicle while it descends a hill by the use of gravity, State v. Lansing, 108 Vt. 218 (1936), attempting to steer the vehicle while it is being towed, State v. Tacey, 102 Vt. 439 (1930), or attempting to extricate the vehicle from a ditch, State v. Parkhurst, 121 Vt. 210 (1959).  The element of operation may be established by the defendant’s admission that he or she had been driving, together with the officer’s observation of the defendant behind the steering wheel.  State v. Constantine, 148 Vt. 629 (1987).  In the DUI context, a charge of “attempting to operate a motor vehicle” means essentially the same thing as “operating a motor vehicle.”  State v. Parker, 123Vt. 369, 371-72 (1963).

A defendant may be found to have been in actual physical control of a motor vehicle on a highway if the defendant had the potential to operate the vehicle; an “immediate potential” to operate the vehicle is not required.  State v. Stevens, 154 Vt. 614 (1990).  A defendant may be found to have been in “actual physical control” even if he or she only intended to roll up the car windows.  State v. Kelton, 168 Vt. 629 (1998).  A defendant also may be in “actual physical control” despite being asleep or unconscious.  State v. Blaine, 148 Vt. 272 (1987); State v. Trucott, 145 Vt. 274 (1984); State v. Godfrey, 137 Vt. 159 (1979).  The defendant need not have been inside the vehicle and behind the steering wheel.  State v. Stevens, 154 Vt. 614 (1990).   Moreover, conviction of being in actual physical control does not require a demonstration that the defendant’s vehicle was fully operable.  State v. Garber, 156Vt. 637 (1991).

 “Motor vehicle” is defined in 23 V.S.A. § 4(21), as modified by 23 V.S.A. § 1200(6).  The model instruction contains virtually all of the language deriving from § 4(21), but the exceptions are bracketed because they will not be relevant in the usual case involving an automobile or truck.  In unusual cases it may be necessary to modify the instruction by reference to § 1200(6) or other statutes.

“Highway” is defined in 23 V.S.A. § 4(13), as modified by 23 V.S.A. § 1200(7).  Here, too, the model instruction contains most of the statutory language, but some of the words are bracketed because they will not be relevant in the usual case.  In some cases it may be necessary to modify the instruction by reference to § 1200(7) or other statutes.

 “Intoxicating liquor” is defined in 23 V.S.A. § 1200(4).

 The instruction on the meaning of “under the influence of intoxicating liquor” derives from State v. Storrs, 105 Vt. 180 (1933), and its progeny.  See notes to instruction CR30-031.

Under Influence of Drugs or Combination.  In comparison to 23 V.S.A. § 1201(a)(2), there have been relatively few cases interpreting § 1201(a)(3), the charge of operating under the influence of a drug other than alcohol, or under the combined influence of alcohol and another drug.  The most significant difference is that, under § 1201(a)(3), the connection between the impairment and the influence of any drug must be proven by expert testimony.  This difference is explained in State v. Rifkin, 140 Vt. 472 (1981).  Also see the cited cases, State v. Tiernan, 302 A.2d 561 (N.J. County Court 1973), and Smithhart v. State, 503 S.W.2d 283 (Texas Crim. App. 1973).  A later New Jersey case concluded that it is not always necessary to identify the drug.  State v. Tamburro, 346 A.2d 401 (1975).

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