DocketNumber: 11FE0112; A151602
Citation Numbers: 259 Or. App. 655, 314 P.3d 979
Judges: Hadlock, Ortega, Sercombe
Filed Date: 11/27/2013
Status: Precedential
Modified Date: 9/9/2022
Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010(5), after a jury trial.
We have held that “there must be evidence that the defendant’s condition made him more susceptible to the influence of alcohol before the trial court may give a Miles instruction.” State v. Gibbs, 193 Or App 296, 297, 89 P3d 1215 (2004) (citing State v. Huck, 100 Or App 193, 197, 785 P2d 785 (1990)). The state concedes that, here, “there was no evidence from which the jury could find that defendant’s physical condition exacerbated the effects of alcohol” because evidence that defendant took pain medication for a bad knee was insufficient, without more, for the jury to make such an inference. Thus, the trial court should not have given the instruction and the case must be reversed and remanded for a new trial. See State v. Curtis, 182 Or App 166, 170, 47 P3d 929, rev den, 335 Or 104 (2002) (reversing and remanding for new trial where the trial court erroneously gave a Miles instruction). We agree, and accept the state’s concession. Therefore, the DUII conviction must be reversed and remanded.
DUII conviction reversed and remanded; remanded for resentencing; otherwise affirmed.
Defendant was also convicted, based on a guilty verdict, of driving while suspended, ORS 811.182, and, based on a no-contest plea, of reckless driving, ORS 811.140. He does not challenge either of those convictions on appeal.