DRIVING (UNDER THE INFLUENCE)/(WHILE IMPAIRED) -
CHEMICAL TEST EVIDENCE DEFINED
If you find that a chemical analysis of the defendant's blood/breath was performed on a sample taken from the defendant within two hours of (within 2 hours after arrest)/(as soon as practical after the fatality/injury accident), then the results of this analysis may be considered by you as to the issue of whether (the defendant was under the influence of alcohol)/(the defendant's ability to drive a motor vehicle was impaired).
[Use for Driving Under the Influence]
If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was eight-hundredths of one percent (0.08%) or greater, then you may find the defendant to have been under the influence of alcohol. If, however, after considering the chemical analysis together with all other evidence in the case, you entertain a reasonable doubt as to whether the defendant was under the influence, then you should find him/her not to have been under the influence of alcohol.
[Use for Driving While Impaired]
If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was more than five-hundredths of one percent (0.05%), then you may consider this evidence on the issue of whether the defendant's ability to drive a motor vehicle was impaired by alcohol. However, no person may be found to have been under impaired ability solely because of a blood alcohol count above 0.05%. You must find, in addition, and beyond a reasonable doubt, that the person's driving was affected by the consumption of alcohol to the extent that the public health and safety were threatened, or that the person's operation of a motor vehicle violated a State statute or local ordinance.
If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was five-hundredths of one percent (0.05%) or less, then you must find the defendant not to have been under the influence of alcohol, unless you find by other competent evidence, and beyond a reasonable doubt, that the (defendant's ability to drive a motor vehicle was impaired by alcohol)/(defendant was under the influence of alcohol).
Statutory Authority: 47 O.S. 2001, § 756.
Notes on Use
The second paragraph is for prosecutions for driving under the influence and the third paragraph is for prosecutions for driving while impaired.
Section 756, as amended by the Legislature in 1972, sets forth the percent of alcohol in the blood which is evidence that the person (1) was not under the influence of alcohol; (2) was operating a motor vehicle with impaired ability; or, (3) was under the influence of alcohol. Section 11-902 punishes for the latter possibility, while section 756 creates a crime for the second possibility. Driving with impaired ability is a misdemeanor, although the fine is more harsh for second and subsequent offenses. Section 761 sets forth the punishment for the crime of driving a motor vehicle with impaired ability.
Under the literal terms of 47 O.S. Supp. 2002, § 11-902(A), the blood or breath alcohol concentration test must be administered within two hours after the defendant's arrest. Nevertheless, the Oklahoma Court of Criminal Appeals decided in Sanders v. State, 2002 OK CR 42, ¶¶ 6-7, 60 P.3d 1048, 1051, that this requirement was not applicable in the circumstances where a blood alcohol test was administered within two hours after a fatality accident in which the defendant could have been arrested at the scene, but was not arrested until approximately one month later.
Section 756 uses the word "operate," but in light of Bearden v. State, 1967 OK CR 133, 430 P.2d 844, and Parker v. State, 1967 OK CR 7, 424 P.2d 997, indicating that "drive" and "operate" are synonymous, the Commission has used the word "drive" as an element to promote consistency in language among the various instructions.
The crime created by section 756 is a lesser included offense of the crime created by 47 O.S. Supp. 2002, § 11-902. Bernhardt v. State, 1986 OK CR 76, ¶ 3, 719 P.2d 832, 833.