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  • WisBar Court Review
    December 07, 2021

    Misstatements and Flawed Jury Instruction Violated Due Process in OWI Case

    Prosecution misstatements about the elements of operating while intoxicated (OWI) and the omission of a paragraph from a standard jury instruction violated a criminal defendant’s due process rights.

    Jeff M. Brown

    Drunk Driving

    Dec. 7, 2021 – Prosecution misstatements about the elements of operating while intoxicated (OWI) and the omission of a paragraph from a standard jury instruction violated a criminal defendant’s due process rights.

    In State v. McAdory, 2020AP2001-CR (Nov. 18, 2021), the Court of Appeals District IV overturned the OWI conviction of Carl L. McAdory.

    A Traffic Stop and a Chase

    In January 2016, a Janesville Police Department officer stopped McAdory in Rock County for driving with only his driver’s side headlight.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    McAdory drove for one block after the officer turned on the emergency lights on his squad car, then drove for another block after the officer activated the siren.

    When the officer talked to McAdory, McAdory acted nervous and spoke with slightly slurred speech. When Bier asked McAdory where he lived, McAdory was unable to provide an address.

    When asked for identification, McAdory said he didn’t have any ID with his name on it. He then gave the officer a false name – Gary McAdory.

    While the officer, Bier, was in his squad car running McAdory’s name, McAdory got out of his car twice. The second time, he ran away.

    Bier gave chase and caught McAdory. McAdory later consented to a blood draw and a chemical test of his blood.

    THC, Cocaine in Blood Sample

    The Rock County District Attorney charged McAdory with one count of OWI and one count of operating with a restricted controlled substance (ORCS), among other charges.

    At trial, Officer Bier testified that in his opinion and based on his training and experience, McAdory was impaired at the time of the traffic stop. A toxicologist from the state crime lab also testified at trial.

    The toxicologist testified that McAdory’s blood contained three metabolites of cocaine, including cocaethylene. McAdory’s blood also tested positive for THC, the active ingredient in marijuana, but it tested negative for alcohol.

    The toxicologist provided no testimony about the effects that THC or cocaine – or the combination of THC, cocaine, and alcohol – might have on a person’s ability to drive safely. Nor did he testify about whether the amounts of controlled substances detected in McAdory’s blood were significant.

    The jury convicted McAdory on the OWI and ORCS charges. After trial, the state moved to dismiss the ORCS conviction and the circuit court sentenced McAdory on the other convictions. McAdory appealed the OWI conviction.

    Evidence Was Sufficient

    On appeal, McAdory claimed that the evidence offered against him at trial was insufficient to sustain his conviction for OWI.

    In an opinion written by Presiding Judge Brian Blanchard, a three-judge appellate panel held that the state had offered sufficient evidence to prove both elements of the OWI charge: that McAdory was operating a motor vehicle on a highway shortly before he was arrested and that he was under the influence of a controlled substance while doing so.

    There was no dispute that McAdory was operating a motor vehicle on a highway shortly before he was arrested.

    And, the appellate panel concluded, the jury had a reasonable basis – informed in large part by his behavior during the traffic stop – for finding that McAdory was under the influence of a controlled substance. That was so despite the fact that the toxicologist had not testified about the effect that the cocaine and THC in McAdory’s blood would have on his ability to drive safely, Blanchard wrote.

    Jury Instruction was Flawed

    The appellate panel was more sympathetic to McAdory’s argument that the circuit court violated his due process rights by striking a paragraph from the standard OWI jury instruction.

    The omitted paragraph read as follows: “[Not every person who has consumed (name controlled substance) is ‘under the influence’ as that term is used here.] What must be established is that the person has consumed a sufficient amount of (name controlled substance) to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.”

    The appellate panel acknowledged that circuit courts have a wide latitude in developing the wording of jury instructions.

    However, Blanchard wrote, “it is prudent for circuit courts to consider whether variations from pattern instruction are necessary ‘because [the pattern instructions] do represent a painstaking effort to accurately state the law and provide statewide uniformity.’”

    The modified instruction accurately stated the elements of the OWI offense, and provided definitions for terms contained in the elements. But it was incomplete and ambiguous, the appellate panel held, because it failed to tell the jury that it could not find McAdory guilty because of the mere presence of cocaine and THC in his blood.

    The modified instruction’s failure to inform the jury that the prosecution must show that McAdory had consumed enough cocaine and/or THC to affect his ability to control a motor vehicle was constitutionally suspect, Blanchard wrote.

    “As to the second proposition, ‘sufficient amount’ would have underscored for the jury that some amounts would not be sufficient to cause the level of impairment that the State needed to prove.”

    Misstatements in Prosecution’s Closing

    Additionally, in the opening statement, the prosecution told jurors that to prove the OWI charge, the State need only prove that McAdory operated a motor vehicle and that he had a detectible amount of controlled substances in his system.

    “The prosecution could scarcely have been clearer, or more inaccurate, in driving home the proposition that the State’s case would be won as soon as it proved these two elements beyond a reasonable doubt,” Blanchard wrote.

    The prosecution made the same misstatements to the jury during the closing argument. Additionally, wrote Blanchard, the prosecution’s closing “also confusingly referenced signs of intoxication by use of alcohol, and did not refer to any specific impairing effect that could have been caused by the controlled substances.”

    Those misstatements, plus the ambiguous nature of the modified jury instruction, “created a reasonable likelihood that the jury did not understand the burden that the State had in proving the ‘under the influence’ element of the impaired-by-drugs offense,” Blanchard wrote.



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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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