Wis JI-Criminal 2664A

Statutory Definition of the Crime

Section 346.63(1)(a) of the Wisconsin Statutes is violated by one who drives or

operates a motor vehicle on a highway1 while under the influence of a combination of an

intoxicant and a controlled substance.

Burden of Proof

Before you may find the defendant guilty of this offense, the (identify prosecuting

agency)2 must satisfy you to a reasonable certainty by evidence which is clear, satisfactory,

and convincing that the following two elements were present.

Elements of the Offense That Must Be Proved

1. The defendant (drove) (operated) a motor vehicle3 on a highway.4

[“Drive” means the exercise of physical control over the speed and direction

of a motor vehicle while it is in motion.]5

[“Operate” means the physical manipulation or activation of any of the

controls of a motor vehicle necessary to put it in motion.]6

2. The defendant was under the influence of a combination of an intoxicant and

(name controlled substance)7 at the time the defendant (drove) (operated) a motor

vehicle.

[(Name controlled substance) is a controlled substance.]8

The Definition of “Under the Influence”

“Under the influence” means that the defendant’s ability to operate a vehicle was

impaired because of consumption of a combination of an alcoholic beverage and a

controlled substance.9

[Not every person who has consumed alcoholic beverages and controlled substances

is “under the influence” as that term is used here.]10 What must be established is that the

person has consumed a sufficient amount of alcohol or of a controlled substance or both to

cause the person to be less able to exercise the clear judgment and steady hand necessary

to handle and control a motor vehicle.

It is not required that impaired ability to operate be demonstrated by particular acts of

unsafe driving. What is required is that the person’s ability to safely control the vehicle be

impaired.

How to Use the Test Result Evidence

WHERE TEST RESULTS SHOWING MORE THAN 0.04 BUT LESS THAN

0.08 GRAMS HAVE BEEN ADMITTED, ADD THE FOLLOWING.11

[The law states that the alcohol concentration in a defendant’s (breath) (blood) (urine)

sample taken within three hours of (driving) (operating) a motor vehicle is evidence of the

defendant’s alcohol concentration at the time of the (driving) (operating). An analysis

showing that there was [.04 grams or more but less than .08 grams of alcohol in 100

milliliters of the defendant’s blood] [.04 grams or more but less than .08 grams of alcohol

in 210 liters of the defendant’s breath] at the time the test was taken may be considered by

you in determining whether the defendant was under the influence of an intoxicant at the

time of the alleged (driving) (operating). However, by itself it is not a sufficient basis for

finding that the defendant was under the influence of an intoxicant at the time of the alleged

(driving) (operating).

Therefore, you may consider this evidence regarding an alcohol concentration test

along with all of the other credible evidence in the case, giving to it the weight you believe

it is entitled to receive.]

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED12 AND THERE IS NO ISSUE RELATING TO THE

DEFENDANT’S POSITION ON THE “BLOOD-ALCOHOL CURVE,”13 THE

JURY SHOULD BE INSTRUCTED AS FOLLOWS:

[If you are satisfied to a reasonable certainty by evidence which is clear, satisfactory,

and convincing that there was [.08 grams or more of alcohol in 100 milliliters of the

defendant’s blood] [.08 grams or more of alcohol in 210 liters of the defendant’s breath] at

the time the test was taken, you may find from that fact alone that the defendant was under

the influence of an intoxicant at the time of the alleged (driving) (operating), but you are

not required to do so. You the jury are here to decide this question on the basis of all the

evidence in this case, and you should not find that the defendant was under the influence

of an intoxicant at the time of the alleged (driving) (operating), unless you are satisfied to

a reasonable certainty by evidence which is clear, satisfactory, and convincing.]

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED:14

[The law recognizes that the testing device used in this case uses a scientifically sound

method of measuring the alcohol concentration of an individual. The State is not required

to prove the underlying scientific reliability of the method used by the testing device.

However, the State is required to establish that the testing device was in proper working

order and that it was correctly operated by a qualified person.]

Jury’s Decision

If you are satisfied to a reasonable certainty by evidence which is clear, satisfactory,

and convincing that both elements of this offense have been proved, you should find the

defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.