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HARRELL v. STATE4/3/1998
idence presented at trial.
II.
The appellant also argues that the trial judge committed reversible error when she refused to give the jury his requested instructions regarding being under the influence of a controlled substance or under the combined influence of alcohol and a controlled substance. The appellant requested the following two jury instructions, in writing:
"Defendant's No. 1: If after considering all the evidence you believe the defendant operated or controlled a motor vehicle under the influence of a controlled substance or under the combined influence of alcohol and a controlled substance, you must find the defendant not guilty of this offense."
"Defendant's No. 2: If after considering all the evidence you believe the defendant operated or controlled a motor vehicle under the influence of a controlled substance to a degree which rendered him incapable of safely driving you must find the defendant not guilty of the offense."
The trial judge refused these instructions.
The trial judge's refusal to give the requested instructions, however, does not constitute error. It is clear from this Court's analysis in Stone that the instructions the appellant requested do not correctly state
the law of this case. The trial judge in Stone instructed the jury as follows:
"The prosecution does not have to show that the only substance that the defendant was under the influence of was alcohol or that the only substance which affected the defendant's ability to drive safely was alcohol."
Stone, 656 So.2d at 412. Although the issue concerning the appropriateness of this instruction was not preserved for review, this Court stated, " e do not necessarily approve the actual language used by the trial court in its instruction in this case," but in a footnote quoted the Massachusetts Supreme Court for proper language:
"We agree with the Massachusetts Supreme Court that 'an appropriate instruction in these circumstances might be similar to the following: You are instructed that, if the defendant's ability to [safely] operate [a motor vehicle] was [affected] by [his consumption of] alcohol, the defendant has violated [§ 32-5A-191(a)(2)] even though some other cause, also operating on the defendant while he or she was driving, tended to magnify the effect of the liquor or concurred in causing the defendant's diminished capacity to operate [a vehicle] safely. It is no defense, under the statute, to show the existence of such concurring cause, so long as the influence of liquor remained as one of the causes of the defendant's diminished capacity.' Commonwealth v. Stathopoulos, 401 Mass. 453, 517 N.E.2d 450, 453 n. 4 (1988)."
656 So.2d at 413.
The instructions the appellant requested in this case are clearly inconsistent with the language used by the Massachusetts Supreme Court. According to the instructions requested by the appellant, the jury must find the appellant not guilty if it finds that a controlled substance or a combination of alcohol and a controlled substance played a role in his impairment. Contrary to the requested charges, a jury could find the appellant guilty if alcohol affected his ability to drive safely, regardless of what role a controlled substance may have played in his impairment. Therefore, the trial judge correctly refused to give these instructions to the jury. The appellant's conviction is due to be affirmed.
AFFIRMED.
All judges concur, except BASCHAB, J., who recuses.
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