McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”
The standard instruction on offenses for driving “under the influence” tells the jury that phrase means the defendant’s ability to operate a vehicle is impaired because of the consumption of whatever intoxicant is alleged to be involved. It goes on to say that “[n]ot every person who has consumed [the relevant intoxicant or 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 the [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.” Wis. J.I.—Criminal 2664 at 2.
Over the objection of McAdory, the prosecutor convinced the judge to delete that part of the definition of “under the influence.” (¶¶46-47). But in opening statement and closing arguments, the prosecutor effectively collapsed the under-the-influence charge into the strict liability detectable-amount charge. (¶¶43-45). For example, in rebuttal closing:
So we come back to those two things. Was he driving? Yes. Did he have a detectible amount of controlled substance in his system? Yes. That evidence is in. There is no other reasaonable hypothesis except that Mr. McAdory is guilty of operating while intoxicated…. (¶45)
The court of appeals agrees with McAdory that the deletion of the full definition of “under the influence” along with the state’s closing argument misled the jury into confusing the elements of the impaired-by-drugs offense with the elements of the strict-liability offense. That in turn could lead the jury to find McAdory guilty of the impaired-by-drugs offense merely because there was a detectable amount of cocaine and THC in his blood, whether or not he was “under the influence” of cocaine and THC.
¶55 The circuit court’s modification of the pattern Criminal Jury Instruction 2664 presented the jury with an accurate statement of the elements of the offense, and it gave definitions of terms used in the elements. However, it was incomplete and therefore ambiguous for purposes of this case to the extent that it failed to inform the jury of two related propositions: (1) not every person who has consumed cocaine and THC is “under the influence”; and (2) a person is not “under the influence” unless he or she has consumed “a sufficient amount of cocaine and THC to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control amotor vehicle.” (Emphasis added.)
¶56 As to the first proposition, the jury here was not explicitly informed that it could not find McAdory guilty based merely on a finding that he had consumed cocaine and THC before driving…. 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. “Clear judgment and steady hand necessary to handle and control a motor vehicle” is a reasonably concrete formulation to convey what impairment looks like in the context of driving. ….
¶57 The circuit court gave instructions that correctly distinguished between the impaired-by-drugs offense and the strict-liability offense. However, the missing propositions from the definition of “under the influence” for the impaired-by-drugs offense created ambiguity and contributed to create the due process violation in the proceedings as tried….
Two notes: First, because McAdory was charged with both the strict liability offense of driving with a detectable amount and operating under the influence, under § 346.63(1)(c) he could only be convicted and sentenced for one or the other. For some inexplicable reason, after the jury found McAdory guilty of both, the state elected to dismiss the strict liability offense and proceed to judgment on the impaired-driving conviction. Had it dismissed the impaired-driving count instead, as the court of appeals notes (perhaps wryly), “the issues we address in this appeal would not have arisen….” (¶1 n.2).
Second, McAdory also challenged the sufficiency of the evidence that he was under the influence. The court of appeals addresses this issue first, as insufficient evidence would require vacating the conviction and obviate the need to address the instructional error. Though it finds the case to be a close one based on the evidence presented in this case, under the highly deferential sufficiency standard there is enough evidence on which a jury could find impairment. (¶¶19-37).