Wis JI-Criminal 2666A

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 combined influence of an

intoxicant and any other drug to a degree which renders him or her incapable of safely

driving.

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt the following two elements were

present.

Elements of the Crime That the State Must Prove

1. The defendant (drove) (operated) a motor vehicle2 on a highway.3

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

of a motor vehicle while it is in motion.]4

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

controls of a motor vehicle necessary to put it in motion.]5

2. The defendant was under the combined influence of an intoxicant and (name of

drug) to a degree which rendered (him) (her) incapable of safely driving at the

time the defendant (drove) (operated) a motor vehicle.7

[(Name of drug) is a drug.]8

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 any other

drug.9

[Not every person who has consumed alcoholic beverages and any other drug 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 any other drug 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 concertation 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 beyond a reasonable doubt 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 of that fact beyond a reasonable doubt.]

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 beyond a reasonable doubt 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.