INSTRUCTION NO. which renders him/her incapable of safely operating a motor vehicle. Under the law, a person

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1 INSTRUCTION NO. The mere consumption of alcohol combined with the driving of a vehicle is not unlawful. It is only unlawful for someone to drive a vehicle while under the influence of alcohol to a degree which renders him/her incapable of safely operating a motor vehicle. Under the law, a person may be considered to be driving under the influence of alcohol to a degree which renders him/her incapable to safely operate a motor vehicle when the Defendant s mental faculties of perception or the Defendant s physical abilities of coordination are so affected as to significantly impair his/her ability to operate the vehicle within the required degree of care. 1

2 If you find from the evidence that the Defendant has consumed alcohol or drugs and was driving a vehicle at the time and place alleged, but you have a reasonable doubt that the Defendant was under the influence of alcohol to a degree which rendered him/her incapable of safely operating it at that time, you must find the Defendant not guilty. In reaching your determination you may consider the way in which the Defendant drove his/her vehicle and the defendant s physical characteristics observed by the officer, along with all of the other evidence in this case, in determining whether or not the Defendant was under the influence of alcohol to a degree which rendered him/her incapable of safely operating a motor vehicle it at the time he/she was driving it. 2

3 INSTRUCTION NO. You are instructed by law in prosecutions for the offense of driving a vehicle while under the influence of alcohol, that the amount of alcohol in the Defendant s breath gives rise to the following: It is unlawful to be driving a vehicle if there was the time of driving.08 grams or greater of alcohol in the defendant s blood. In admitting evidence of an analysis of breath, the Court does not determine the accuracy of the breath test only that evidence of the breath test is admissible. The accuracy of the breath test is a fact for the jury alone to determine and the jury alone determines what amount of weight should be given to the test results. This instruction applies only if the jury first determines that a reliable test is present. 3

4 The prosecution has presented evidence of a breath test and the numeric result of that test. As the triers of fact it is up to you to determine what weight is to be given to the result of the breath test. It is up to you to determine if you feel that the breath test accurately reflects the defendant s breath alcohol content at the time of his arrest. Unless you are convinced beyond a reasonable doubt that the Defendant 's blood or breath alcohol content exceeded.08 percent grams or greater by weight, then you cannot find the Defendant guilty of driving under the influence while having a blood alcohol content of.08. 4

5 INSTRUCTION NO. You are instructed that if by subtracting the Margin of Error or Tolerance from the chemical breath test reading, that the result is then less than.08, by virtue of the presumption of innocence applied in favor of the Defendant, you must find that the Defendant s blood or breath alcohol content was not over the legal limit and that the Defendant is not guilty of that element of the crime. 5

6 The prosecution has presented evidence of a breath test and the numeric result of that test. As the triers of fact it is up to you to determine what weight is to be given to the result of the breath test if any. It is up to you to determine if you feel that the breath test accurately reflects the defendant s breath alcohol content at the time of his arrest. Unless you are convinced beyond a reasonable doubt that the Defendant 's breath alcohol content exceeded.08 percent grams or greater, then you cannot find the Defendant guilty of driving under the influence while having a breath alcohol content of.08. 6

7 INSTRUCTION NO. During the course of the trial you were advised that police officers in Utah are trained and required to observe a rule called the Baker rule. Pursuant to the Baker rule, before administering a breath test an officer must check the subjects mouth to ensure that there are no foreign objects in the subjects mouth, the officer must personally observe the driver for a period of 15 minutes to ensure that the driver has not belched, vomited or otherwise introduced any foreign substances of alcohol containing substances into the drivers mouth, and the officer must have been properly certified to conduct a breath test. If you find that the officer failed to comply with the Baker rule, as the trier of fact you shall determine what effect the officer s failure to comply with the Baker rule may have on the accuracy of the breath test and what weight, if any, shall be given to the result of the test. 7

8 INSTRUCTION NO. You are instructed by law in prosecutions for the offense of driving a vehicle while under the influence of alcohol, that the amount of alcohol in the Defendant s breath gives rise to the following: It is unlawful to be driving a vehicle if there was the time of driving.08 grams or greater of alcohol in the defendant s blood. In admitting evidence of an analysis of breath, the Court does not determine the accuracy of the breath test only that evidence of the breath test is admissible. The accuracy of the breath test is a fact for the jury alone to determine and the jury alone determines what amount of weight should be given to the test results. This instruction applies only if the jury first determines that a reliable test is present. 8

9 The prosecution has presented evidence of a breath test and the numeric result of that test. As the triers of fact it is up to you to determine what weight is to be given to the result of the breath test. It is up to you to determine if you feel that the breath test accurately reflects the defendant s breath alcohol content at the time of his arrest. Unless you are convinced beyond a reasonable doubt that the Defendant 's blood or breath alcohol content exceeded.08 percent grams or greater by weight, then you cannot find the Defendant guilty of driving under the influence while having a blood alcohol content of.08. 9

10 INSTRUCTION NO. You are instructed that pursuant to the Utah Administrative Rules governing the calibration and maintenance of the breath testing machine, the machine must be calibrated within a Margin of Error or Tolerance of +/ 5%. Likewise, the manufacturer of the calibration solution used to calibrate the breath testing machine also has a Margin of Error or Tolerance of +/ 3%. By virtue of the presumption of innocence, you must apply these Margins of Error in favor of the Defendant. 10

11 You have heard certain evidence that the Defendant was administered a field sobriety test known as the Horizontal Gaze Nystagmus or HGN test. However, there has been no evidence presented, nor may you infer or assume, that the HGN test is a scientifically accurate means of determining either the presence of alcohol in someone s system or whether someone is under the influence of alcohol. Indeed, the HGN test has not been approved as a scientifically reliable test in any Utah court. Rather, evidence of the HGN test has been admitted solely as a part of the basis of the arresting officer s opinion that the Defendant was under the influence of alcohol. You are not bound to agree with the officer s opinion, nor are you obligated to give any weight to the HGN evidence. It is your duty as jurors to independently determine whether the Defendant was capable of safely operating a vehicle based upon all of the evidence presented to you. In considering that issue, you may give whatever weight you deem proper to the officer s opinion and to any of the various bases for that opinion. 11

12 In this case, you have heard evidence that the Defendant was asked to perform, and did perform, certain tests which are commonly called field sobriety tests. It is up to you to decide if those procedures reliably indicated whether or not the Defendant s ability to safely operate her motor vehicle was diminished, or whether the procedures may be considered to have any rational connection to operating a vehicle safely at all. In judging the Defendant 's performance on those procedures, you may consider the circumstances under which the procedures were given, the manner in which the Defendant was instructed to perform the tests, the way in which the test was scored, the Defendant 's physical condition, the Defendant s state of mind, and any other factors which you consider to be relevant. It is up to you to determine the weight to give the Defendant's performance on the field sobriety, or to totally disregard the evidence of the defendant s performance on those tests, if you so determine. 12

13 The Defendant in this case admitted that she had consumed some alcohol prior to driving. This admission by itself does not prove that the Defendant was intoxicated to a degree which rendered her incapable of safely operating a motor vehicle. In order to find that the Defendant was intoxicated to a degree which rendered her incapable of safely operating a motor vehicle, you must find that the prosecution provided independent evidence to establish beyond a reasonable doubt that the Defendant was intoxicated to a degree which rendered her incapable of safely operating a motor vehicle. 13

14 There are several elements which are supposed indicators of impairment from alcohol consumption. Some of these elements are: bloodshot eyes, drooling, odor of alcohol, poor balance, slurred speech, or vomiting. Any of these indicators by itself is not enough to justify an arrest of a person, because it is possible that there is an innocent reason for the observed characteristics. These factors are only some of the factors that you can consider when determining if the prosecution has proven beyond a reasonable doubt that the Defendant was under the influence of alcohol to a degree that rendered her incapable of safely operating a motor vehicle. The odor of alcohol is the only one of the elements that has no other innocent explanation however the odor of alcohol alone is not sufficient evidence to find the defendant guilty beyond a reasonable doubt. 14