ICJI 1008

ICJI 1008 DUI ENHANCEMENT-PRIOR CONVICTIONS OR GUILTY PLEAS

Having found the defendant guilty of Driving Under the Influence, you must next decide whether the defendant has pled guilty to or was found guilty of Driving Under the Influence within the last ten years. The state alleges:

1. The defendant [pled guilty to] [was found guilty of] a violation of IC � 18-8004, Driving Under the Influence in [name of county], Idaho, Case No. [.][, and

2. The defendant [pled guilty to] [was found guilty of] a violation of IC � 18-8004, Driving Under the Influence in [name of county], Idaho, Case No. [.]

[3. (Add other prior offenses).]

If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.

[or]

Having found the defendant guilty of Driving Under the Influence, you must next decide whether the defendant has pled guilty to or was found guilty of [felony Driving Under the Influence] [Aggravated Driving Under the Influence] [or] [Vehicular Manslaughter] within the last fifteen years. The state alleges:

1. The defendant [pled guilty to] [was found guilty of] a violation of IC � 18-8004, [felony Driving Under the Influence] [Aggravated Driving Under the Influence] [or] [Vehicular Manslaughter] in [name of county], Idaho, Case No. [.]

If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.

[or]

Having found the defendant guilty of Driving Under the Influence, you must next decide whether the defendant has pled guilty to or was found guilty of Driving Under the Influence within the last fifteen years. The state alleges:

1. The defendant [pled guilty to] [was found guilty of] a violation of IC � 18-8004C, Driving Under the Influence, in [name of county], Idaho, Case No. , and at the time of the violation the defendant had an alcohol concentration of .20 or more as shown by analysis of defendant's (blood) (urine) (breath).

If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.

Comment

I.C. �� 18-8005(4), 18-8005(6) and 18-8005(9).

State v. Johnson, 86 Idaho 51, 383 P2d 326 (1963), held that a persistent violator charge should be stated in a two-part information. The first part should state the particular offense with which the defendant is charged, and be signed at the end of the page by the prosecutor. The second part, or page, should allege former convictions, and be separable from the first part. It should be signed separately by the prosecutor. The entire information should be read to the accused at arraignment. However, when the jury is informed of the charge only the first part is read, then, after, and depending upon the verdict on part one, the second part is read, and the jury deliberates further.

State v. Mesenbrink, 115 Idaho 850, 771 P.2d 514 (1989), in dicta, adopts this procedure for enhanced DUI's. See also State v. Bever, 118 Idaho 80, 794 P.2d 1136 (1990); State v. Craig, 117 Idaho 983, 793 P.2d 215 (1990).

Instructing jury that the Intoxilyzer 5000 had been approved by the State of Idaho held to be erroneous because such an instruction commented on the legal determination of adequate foundation which is not properly an issue before the jury and implied the test was accurate. State v. Winson, 129 Idaho 298, 923 P.2d 1005 (Ct. App. 1996).

See ICJI 1009 for special verdict instruction.