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Johnson v. State8/24/1995
lly not consistent with your defense. Your defense is basically based on the fact that your client is not under the influence or that the machine is"the showing of the machine is less than what the presumption is. And that's the reason why I'm going to object"or rejecting it in this particular case.
After trial, the jury returned guilty verdicts for driving while under the influence and driving with 0.10 percent or more blood alcohol content.
DISCUSSION
In Stanifer v. State, 109 Nev. 304, 849 P.2d 282 (1993), we stated that:
n some circumstances, fairness to the defendant requires the district court to instruct the jury on lesser-related offenses. . . . The rationale for requiring an instruction on a lesser-related offense is to give the trier of fact an option "`other than conviction or acquittal when the evidence shows that the defendant is guilty of some crime but not necessarily the one charged . . . .'"
Id. at 307, 849 P.2d at 284-85 (citation omitted) (quoting Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1238 (1989) (quoting People v. Geiger, 674 P.2d 1303, 1307-08 (Cal 1984)). In Moore, we held that:
he jury should receive instruction on a lesser-related offense when three conditions are satisfied: (1) the lesser offense is closely related to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the lesser offense exists.
Moore, at 383, 776 P.2d at 1238-39. A defendant's theory of defense is not consistent with the conviction for the related offense if "`the defense theory and evidence reflect a complete denial of
[111 Nev. 1210, Page 1214]
culpability . . . .'" Moore v. State, 109 Nev. 445, 446, 851 P.2d 1062, 1063 (1993) (quoting Geiger, 674 P.2d at 1316). "Instead, this [lesser-related instruction] requires a showing that the defendant admits to conduct which constitutes some lesser crime ." Id. at 447, 851 P.2d at 1063; see also Moore, 105 Nev. at 382-84, 776 P.2d at 1238-39 (reversing district court's refusal to instruct on lesser crime where appellant's defense to charge of second-degree murder was involvement only as accessory after the fact). The State argues that there was no evidence provided at trial that demonstrated that Johnson was driving in a reckless manner. Indeed, the State notes that even Johnson's girlfriend testified that Johnson was driving safely prior to the stop. Insisting that the sole reason for the stop was Johnson's high rate of speed, the State down played Johnson's drunken state, claiming that "the testimony was only that he had taken fewer than four sips or drinks from his beer, and only two since leaving Tonopah fifty miles back." Consequently, the State argues that because no real evidence of the lesser-related offense of reckless driving existed, Johnson does not meet the requirements of Moore and there was no error in refusing the requested instruction.
We disagree. Following Moore's three-step analysis, we first conclude that reckless driving is closely related to the offense of driving under the influence. While Nevada has no statute which presumes that intoxication is evidence of negligent or reckless driving, the present facts sufficiently reflect an aspect of recklessness that could support a finding of reckless driving. Johnson admitted that he had been sipping an alcoholic beverage while driving, that he had an opened alcoholic beverage in the car when stopped, that he had passed several cars in the passing lane at an excessive rate of speed, and that he was driving with a revoked license. Second, merely because the defense attempted to argue that Joh
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