- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 09-27-2017
- Case #: A159784
- Judge(s)/Court Below: Shorr, J. for the Court; Tookey, P.J.; & Linder, S.J.
- Full Text Opinion
Defendant appealed a conviction for driving while under the influence of intoxicants, (DUII), ORS 813.010. Defendant assigned error to the lower court’s refusal to give a jury instruction of attempted-DUII. On appeal, Defendant argued that his blood alcohol content might not have exceeded the legally permissible limit at the time of the arrest because it was “gradually increasing” when it was tested an hour and a half after the field sobriety tests were performed. As such, Defendant argued that “he might have only attempted to be under the influence of intoxicants.” In response, State argued the requested jury instruction was not legally valid because intoxication is a status that a driver has or does not have at the time of arrest. “A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405(1). The Court of Appeals agreed with State and concluded that a driver either is or is not intoxicated time of an arrest, regardless of his or her mental state. The Court held that Defendant’s requested jury instruction of attempted-DUII constituted an erroneous legal principle and, therefore, the trial court was correct in refusing to provide it. Affirmed.