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Bridges v. Commonwealth of Kentucky1/21/1993
Opinion OF THE COURT BY JUSTICE COMBS
We granted review of Bridges' conviction for operating a motor vehicle while under the influence of (apparently) alcohol. The issue is whether the trial court erred to the defendant's prejudice by including in its instructions to the jury a definition of "under the influence." We hold that the trial court did so err, and reverse.
The elements of the charged offense are defined by KRS 189A.010(1):
No person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one's driving ability.
The trial court's Instruction No. I fairly stated the statutory elements. The court then proceeded, over objection, to give its Instruction No. III:
"Under the influence" means that a person must consume some alcohol or other intoxicating beverage of any type which may impair his driving ability. The intoxicating beverage, whether in small quantities or great quantities, may adversely affect the Defendant's action, reactions, conduct, movements or mental processes, and may have impaired his reactions so as to deprive him of that control over himself which he would normally possess. It is not necessary for the Commonwealth to prove impaired driving ability or that the Defendant was "drunk", and it is not necessary that the Commonwealth of Kentucky prove the exact type of intoxicating beverage that a person consumed to warrant a finding by you of guilty.
For a number of reasons, we believe Instruction No. III was improper. First, the instruction equates "under the influence" with mere consumption. This fallacy, combined with the truisms which follow it, rewrites the statute so as to incriminate any person who drives after having consumed any amount of alcohol at any time.
That the equation is indeed fallacious is beyond question. The implication of Instruction No. III, that consumption of any amount of alcohol necessarily puts the consumer "under the influence," defies common sense and, perhaps more to the point, defies the law. It cannot be reconciled with KRS 189.520(3), which provides in part:
(a) If there was 0.05 percent (5/100%) or less by weight of alcohol in such blood, it shall be presumed that the defendant was not under the influence of intoxicating beverages;
(b) If there was more than 0.05 percent (5/100%), but less than 0.10 percent by weight of alcohol in such blood, such fact shall not constitute a presumption that the defendant either was or was not under the influence of intoxicating beverages . . . .
(Emphasis added.) Even the statutory presumption of KRS 189.520(3)(c), that a concentration of 0.10 percent or greater by weight of alcohol in the blood renders a person under the influence, is rebuttable. See, e.g., Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972); Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006 (1938). But it is subsection (a), supra, which most vividly demonstrates that even recent consumption of alcohol is not sufficient to establish conclusively that the consumer is "under the influence."
Bridges also maintains that Instruction No. III was erroneous in stating what the Commonwealth need not prove - i.e., impaired driving ability or that the defendant was drunk. The Commonwealth argues that the instruction was appropriate in this respect in order to present the legal issues involved.
The parties agree that the essential elements of the offense are committed by the operation of a motor vehicle while under the influe
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