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Johnson v. State8/24/1995
nson was not driving under the influence with a 0.10 percent or greater BAC, does not mean that the defense theory was inconsistent with a conviction of reckless driving. Indeed, it is likely that if Johnson's requested instruction had been given, defense counsel would have attempted to convince the jury that Johnson's conduct was deserving of nothing more than a conviction of reckless driving. Finally, the third prong of the Moore test was satisfied by evidence of Johnson's high speed while drinking, which together constitute an arguable basis for a finding of reckless driving.
Because the breath test results were the only evidence presented to prove that Johnson was
[111 Nev. 1210, Page 1215]
driving with a BAC of 0.10 percent or higher, and since these results may have erroneously elevated the results above 0.09 percent BAC, this case is one in which a lesser-related instruction ought to have been given. See Geiger, 674 P.2d at 1312 ("in absence of substantial countervailing considerations justifying continuation of the rule that instructions need be given only on included offenses, due process requires that instructions on related offenses be given on request of the defendant in appropriate circumstances"). We therefore conclude that the district count erred in refusing to allow the lesser-related reckless driving instruction. 3
[111 Nev. 1210, Page 1216]
Johnson also contends that the district court erred in denying him the opportunity to question Chevat about statements she made in a prior criminal proceeding. We do not agree. In the instant case, Chevat had more than reasonable grounds to believe that Johnson was under the influence of alcohol and to subject him to a blood alcohol test. See NRS 484.383(1). When Johnson spoke to Chevat, he did so in a quiet, slightly slurred manner, turning his face away from the officer. Chevat observed an open container of alcohol in Johnson's car, smelled alcohol on his breath, and concluded that Johnson failed three field sobriety tests administered by the officer. There was no basis for attempting to impeach Chevat's reasons for requiring Johnson to submit to a blood alcohol test. The district court did not err in refusing to allow defense counsel to pursue an unrelated experience concerning Officer Chevat's conduct. We have considered all other arguments raised on appeal and conclude that they are without merit.
CONCLUSION
Because the district court's refusal to instruct the jury on the lesser-related offense of reckless driving was prejudicial, we reverse the district court's judgment of conviction and remand this case to the district court for a new trial.
Young, Springer and Rose, JJ., concur.
Shearing, J., dissenting: I would affirm the judgment of conviction for driving under the influence of intoxicating liquor or controlled substances. The majority holds that the trial court erred by not allowing a jury instruction for the offense of reckless driving on the ground that reckless driving is a lesser-related offense. A lesser-related offense instruction may be given only 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 v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1239 (1989) (Moore I). I do not agree that the evidence in this case supports any of the conditions required under Moore I. Driving under the influence and reckless driving are not closely related offenses. The offense of driving under the influence focuses on the impaired condition of the driver.
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