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Johnson v. State8/24/1995
, 849 P.2d 282, 284 (1993). I cannot see how Johnson was prejudiced in any way by the court's failure to give the reckless driving instruction. If Johnson was driving while impaired by alcohol, he should have been convicted of driving under the influence of alcohol. If he was not impaired, he should have been acquitted of the charge. The factors outlined in Moore I indicating when an instruction on a lesser-related offense is merited should be strictly observed. The trial judge was correct in refusing to give a lesser-related offense instruction for reckless driving and therefore the judgment of conviction should be affirmed.
Opinion Footnotes}
1 NRS 484.379 provides in part: 1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor; (b) Has 0.10 percent or more by weight of alcohol in his blood; or (c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. Johnson had at least two previous DUI convictions outside the State of Nevada. Consequently, he was charged with committing a felony. See NRS 484.3792(1)(c).
2 NRS 484.383 provides in part: 1. . . . any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a police officer having reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.
3 The dissenting justice concludes that driving under the influence and reckless driving are not closely related. The former, she contends, focuses on the impaired condition of the driver, while the latter applies to "the improper operation of a vehicle." It seems clear to us that a person who travels at an excessive speed while drinking malt liquor or other alcoholic beverages may easily be found to be willfully or wantonly disregarding the safety of other travelers on the highway. It is simply "improper" to operate a vehicle under such circumstances. Indeed, we would be hard pressed to conclude that driving under the influence of alcohol, with a consequent impairment of the driver's faculties, would not include a component of recklessness. In effect, we so held in Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987). Albitre was a case involving an intoxicated driver who caused the deaths of two innocent people. The State not only convicted Albitre of two counts of felony DUI, but also of two counts of involuntary manslaughter and two counts of felony reckless driving. The Albitre court, concluding that the reckless driving (and involuntary manslaughter) counts were redundant, held: The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating a vehicle in a reckless and unsafe manner due to her intoxication. The State has simply compounded the convictions by eliminating the aspect of alcohol from the four counts under question. We are convinced that the Legislature never intended to permit the State to proliferate charges as to one course of conduct by adorning it with chameleonic attire. Although charging to the limit may be justified to cover developing nuances
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