State v. Avila

                                      284

      Argued and submitted December 20, 2019, reversed and remanded
                             March 16, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     JOSE ANTONIO AVILA,
                        aka Antonio Avila,
                       Defendant-Appellant.
                   Umatilla County Circuit Court
                       CR150856; A167346
                                  

     This case involves the giving of what is known as the “Miles instruction,”
which tells the jury in a DUII case that a defendant whose “physical condition”
makes that defendant “more susceptible to the influence of intoxicants” and who
becomes “under the influence by a lesser quantity of intoxicants than it would
otherwise take,” is nevertheless under the influence of intoxicants. UCrJI 2708;
State v. Miles, 

, 

 (1972) (the genesis of the
instruction in Oregon). The state requested the instruction because defendant
has muscular dystrophy, which the state argued is a physical condition that made
him more susceptible to the effects of alcohol. On appeal, defendant contends that
it was error to give the instruction because there was no evidence in the record
to establish that muscular dystrophy makes a person more susceptible to the
influence of alcohol and because a permanent condition like muscular dystrophy
cannot justify a Miles instruction. Held: The Court of Appeals traced the history
of the Miles instruction and expressed doubt as to whether it is ever appropriate
outside the context of drugs or medications that make the defendant more susceptible to the effects of alcohol; the court also observed that UCrJI 2708, when
given in conjunction with UCrJI 2701 (addressing what it means to be “under
the influence of intoxicants”), introduces a degree of confusion and circularity.
However, the Court of Appeals concluded that, in any event, the trial court erred
in giving the instruction because there was no evidence that defendant’s muscular dystrophy actually made him any more susceptible to the influence of alcohol than someone without that condition. Because defendant’s convictions were
based on the theory that he drove while under the influence of intoxicants, and
the instruction misled the jury on that central issue, the instructional error was
not harmless.
    Reversed and remanded.



    Daniel J. Hill, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
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   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
  JAMES, J.
  Reversed and remanded.
286                                                         State v. Avila

           JAMES, J.
         This case involves the giving of what is known as
the “Miles instruction,” which tells the jury in a DUII case
that a defendant whose “physical condition” makes that
defendant “more susceptible to the influence of intoxicants”
and who becomes “under the influence by a lesser quantity
of intoxicants than it would otherwise take,” is nevertheless under the influence of intoxicants. UCrJI 2708; State
v. Miles, 

, 

 (1972) (the genesis of the instruction in Oregon). The history of the Miles
instruction, which is entirely a product of our case law, without comment by the Oregon Supreme Court, is a cautionary tale regarding the crafting of jury instructions, and it
exemplifies the problems that ensue when instructions are
crafted from short snippets of court opinions. As discussed
below, the phrase “physical condition,” as it appears in the
Miles instruction, was drawn from a Texas case from the
late 1930s that involved the combined effects of drugs and
alcohol; and for the past half century, it has spawned uncertainty about the proper scope of the Miles instruction—
specifically, whether it applies to a “physical condition”
beyond one created by drugs or medications that make a
defendant more susceptible to the influence of alcohol.
         In this case, the instruction was given because
defendant has muscular dystrophy, which the state argues
is a physical condition that made him more susceptible to
the effects of alcohol. As explained below, we have grave
doubts as to whether a Miles instruction is ever appropriate
outside the context of drugs or medications that make the
defendant more susceptible to the effects of alcohol; but, in
any event, the trial court erred in giving the instruction in
this case, because there was no evidence that defendant’s
muscular dystrophy actually made him any more susceptible to the influence of alcohol than someone without that
condition. We therefore reverse and remand.
         Because our disposition turns on defendant’s claim
of instructional error, we confine our discussion to the factual
and procedural history bearing on that issue.1 Defendant
    1
      Defendant also raises assignments of error regarding the admissibility of
evidence about his performance on a horizontal gaze nystagmus (HGN) test and
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was charged with one count of driving under the influence
of intoxicants and one count of reckless driving (also on the
theory that he drove while intoxicated).2 At trial, defendant
testified that he had muscular dystrophy and asthma. He
testified that muscular dystrophy affects his movements,
balance, and breathing, and that it has caused him to
fall and makes it difficult to grasp things with his hands.
According to defendant, his symptoms first appeared when
he was 15 or 16 years old and have advanced over time. He
argued that the symptoms he exhibited when pulled over
were caused by muscular dystrophy, not the beers he had
consumed.
         Defendant also called a physician, Dr. Fahey, to testify about the effects of muscular dystrophy. Fahey testified
that muscular dystrophy is a genetic disease that causes
muscles to become weak and “not work correctly.” Fahey
testified that it can affect walking, coordination, and the
ability to perform basic tasks.
        On cross-examination, the state elicited testimony
about the effects of alcohol on someone with muscular dystrophy. The prosecutor and Fahey had the following exchanges:
      “Q. Okay. So would somebody with muscular dystrophy, would it be—would the consumption of alcohol have a
   worsening or positive [e]ffect on their motor skills?
       “A. It would be a worsening on their motor skills.
      “Q. Okay. And could someone with muscular dystrophy have a worsening of their general motor skills as compared to someone without muscular dystrophy with a lesser
   amount of alcohol?
     “A. I think the impairment and the neurological part
   would be the same. It would impair someone without. It

challenging the court’s imposition of a fine and court-appointed attorney fees.
Because we reverse and remand defendant’s convictions based on his claim of
instructional error, we do not address those remaining assignments. We recognize that questions concerning admissibility of the HGN evidence are likely to
arise on remand, but not in the same posture as defendant’s present challenges,
which involve preservation issues and the adequacy of the foundation laid by the
state.
    2
       Defendant was also charged with one count of refusal to take a test for
intoxicants, which was dismissed.
288                                               State v. Avila

  would impair somebody with. I think if you already have
  muscular dystrophy, it’s an additive effect.
      “Q. Okay. So when you say impairment would be the
  same, in other words, the body would process—I guess I
  don’t understand. You say that there would be an additive
  effect. What I’m really trying to ask here, and perhaps I’m
  not asking this with clarity, but if someone without muscular dystrophy consumes alcohol, is there going to be a
  greater diminished motor skill [e]ffect as compared to
  someone who has muscular dystrophy?
      “A. Mm-hmm.
     “Q. In other words, is the person with muscular dystrophy and they’re consuming alcohol going to have an
  even greater lack of motor skill ability?
     “A. I don’t—okay. I think—what I was trying to say is
  additive, because it affects the neurological part, where the
  muscular dystrophy is at the muscle. So the muscle—the
  neuromuscular junction doesn’t—isn’t changed any way
  by alcohol, but the neurological part is. And it’s across the
  board, you would have that neurological effect.
     “Now, could that be additive, yes. To the—you add the
  neurological component to the neuromuscular junction,
  then you have additive effect. Does that make sense?
      “…
     “Q. Someone without muscular dystrophy driving a
  vehicle without alcohol as the standard. Is a person with
  muscular dystrophy who is driving a vehicle with the
  weakening of the muscles, is that person’s ability to drive
  a vehicle using motor skills going to be rate—affected to a
  greater degree with the use of alcohol as compared to someone without muscular dystrophy?
      “A. I—yeah. I—it will affect them just like it affects a
  person without muscular dystrophy. I think if you have the
  neurological coordination problem with the already pre-existing muscular dystrophy problem, then you have an
  additive effect. That’s what I’m trying to say.
      “…
      “Q. So is there a difference between alcohol consumption and motor skill use with someone without muscular dystrophy in the same persona with muscular dystrophy?
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      “A. Yeah. I—it adversely affects both, and if you’re
   already having a hard time, that would make it even harder
   time. And that makes—
      “Q. Okay. And a harder time, you’re referring to motor
   skills?
      “A. Yes.”
(Emphases added.)
        Based on defendant’s and Fahey’s testimony, the
state requested UCrJI 2708, the Miles instruction. That
instruction states:
       “If you find from the evidence that the defendant was in
   such a physical condition, that the defendant was more susceptible to the influence of intoxicants than he otherwise
   would be, and as a result of that physical condition, the
   defendant became under the influence by a lesser quantity
   of intoxicants than it otherwise would take, the defendant
   is nevertheless under the influence of intoxicants.”
The prosecutor explained that his understanding of Fahey’s
testimony was that “there was an additive effect of the alcohol to someone with muscular dystrophy,” and that Fahey
had said that “someone with muscular dystrophy with—I
think he said with problems or with those issues, referring
to motor skills, would be greater affected by the alcohol.
And that was in response to my question about the amount
of alcohol, the lesser quantity.”
         Defendant objected to the instruction, explaining
that his understanding was that the Miles instruction ordinarily applied in cases “where someone who has taken a certain medication is more susceptible to alcohol because that
affects the same system of the body as does the alcohol.”
And, defendant argued, Fahey had not testified that alcohol
affects a person with muscular dystrophy any differently.
Rather, Fahey had testified “that alcohol affects an entirely
different system of the body than he was referring to the
neuromuscular versus the neurological—and that—so a
person wouldn’t be any more susceptible to the influence of
alcohol itself.”
      The trial court gave this instruction, explaining:
“We have the statements of his medical condition from
290                                             State v. Avila

himself. And then we have the doctor’s testimony regarding the additive effects of alcohol upon muscular dystrophy,
which is what the defendant describes himself as having.”
Thus, the court concluded that the Miles instruction was
appropriate, and it delivered the instruction to the jury.
Defendant was found guilty of DUII and reckless driving.
          On appeal, defendant argues that the trial court
erred in giving the Miles instruction in the context of a
permanent physical condition like muscular dystrophy, but
that, in any event, the evidence did not show that muscular dystrophy made defendant any more susceptible to the
influence of alcohol. Rather, defendant argues, the “additive
effect” described by Fahey was that any impairment from
alcohol would be added to defendant’s existing impairment
from muscular dystrophy. The state, in response, defends
the giving of the instruction, arguing that a genetic disease
can support the giving of a Miles instruction, and that “this
case fits squarely within the parameters of the Miles instruction” in that “[t]he alcohol would be more impairing to someone with defendant’s physical condition than it would be to
someone without that condition, and therefore, the person
may be impaired by a lesser quantity of the alcohol.”
         The accuracy of the trial court’s instructions to the
jury presents a question of law. State v. Guzek, 

, 

 (2015). “We review the instructions as a
whole in determining whether a trial court erred by giving
a particular instruction and whether the instruction accurately stated the law.” 

 Generally speaking, a party “is
entitled to a jury instruction on its theory of the case if the
requested instruction correctly states the law, is based on
the operative pleadings, and is supported by the evidence.”
State v. Williamson, 

, 

,
rev den, 

 (2007).
         The critical legal questions in this case—whether
UCrJI 2708 correctly states the law and whether the evidence in this case supported giving it—require some historical context. As we telegraphed at the outset, the development of the Miles instruction has been a case study in
the risks attendant to drawing jury instructions from short
snippets of opinions, a practice that the Supreme Court and
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this court have long discouraged. See, e.g., Ireland v. Mitchell,

, 

 (1961) (“[I]t is not advisable
in charging the jury to use the exact words of an appellate
court opinion in stating the law in similar cases.”); Sherertz
v. Brownstein Rask, 

, 725 n 2, 

(2017) (“Jury instructions drawn from short snippets of opinions pose challenges.” (Citing Amfac Foods v. Int’l Systems,

, 99 n 3, 

 (1982) (noting that appellate opinions are often “written with no view” that they will
be turned into instructions).)).
         The genesis of the instruction in Oregon, Miles,
is notably short on facts and legal analysis. The defendant in Miles had been charged with violating former ORS
483.992(2) (1971), repealed by Or Laws 1975, ch 451, § 291
(1975), which provided:
      “Any person who, while being under the influence of
   intoxicating liquor, dangerous drugs or narcotic drugs,
   drives any vehicle upon any highway, street or thoroughfare within this state, shall be punished, upon conviction,
   by imprisonment in the county or municipal jail for not
   more than one year, or by fine of not more than $1,000, or
   both.”
Rather than set out any background facts relating to the
charge, we jumped directly to the assignments of error.
With regard to the relevant assignment of instructional
error, this was the sum of our discussion:
      “Finally, defendant’s tenth assignment attacks the
   state’s requested instruction which was directed to defendant’s testimony that his condition was the result of pills
   he had been taking for a stomach ailment. The challenged
   instruction was as follows:
         “ ‘If the defendant was in such a physical condition
      that he thereby was more susceptible to the influence of
      intoxicating liquor than he otherwise would have been,
      and by reason thereof was under the influence from the
      recent use of alcoholic liquor, he would be in the same
      position as though his being under the influence was
      produced by the alcoholic liquor alone.’
        “ ‘A defendant who is in a condition whereby he
      may become under the influence of a lesser quantity of
292                                                State v. Avila

      alcohol tha[n] it would ordinarily take is, nevertheless,
      under the influence of intoxicating liquor. …’
       “The above instruction was clearly applicable to the
   case in view of defendant’s testimony that he had been
   taking medication and that the pills impaired his normal
   mental and physical faculties; the instruction was a correct
   statement of the law. See Kessler v. State, 136 Tex Cr 340,
   

, 309 (1939); Harrell v. City of Norfolk, 180 Va
   27, 

 (1942). Cf. State v. Evans, 

, 

 (1969).”
         Given the brevity of our discussion, the only clue
as to the reasoning as to why the instruction was a “correct statement of the law” is its string cite relying primarily on two out-of-state cases. And the first of those cases,
Kessler, was not only persuasive authority but the source of
the instruction requested in Miles.
          The defendant in Kessler had been charged with
driving while intoxicated, and she testified at trial that
“during the day she took several tablets of amytal but did
not remember drinking any whisky,” and her husband and
a doctor both testified “that amytal was a sedative and was
given to quiet people and cause them to go to sleep. That it
has the same effect as whisky.” 125 SW2d at 309. The defendant requested an instruction “to the effect that if she was
intoxicated on the night in question from the combined use
of amytal and whisky to acquit her.” Id. The court rejected
that argument, explaining that combined intoxication was
still intoxication:
   “If she indulged in the use of amytal to such an extent that
   she thereby made herself more susceptible to the influence
   of intoxicating liquor than she otherwise would have been
   and by reason thereof became intoxicated from the recent
   use of ardent spirits, she would be in the same position as
   though her intoxication was produced by the use of whisky
   alone. A person who gets himself in a condition whereby he
   may become intoxicated from a lesser quantity of whisky
   than it would ordinarily take to produce intoxication is
   nevertheless intoxicated from the use of whisky.”
Id. (emphasis added). On rehearing, the court further
explained that “[t]he proposed charge would authorize an
acquittal of one charged with ‘drunk driving’ if such driver
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was under the combined influence of drugs and whisky
regardless of the state of mind resulting from such use. This
is not the law.” Id. at 310 (emphasis added).

         The state’s requested instruction in Miles was cribbed
directly from the court’s reasoning rejecting the defendant’s
proffered instruction in Kessler. In other words, the proffered
instruction in Miles flipped the Kessler analysis around. In
doing so, not only did it turn a hypothetical factual scenario
involving combined use of drugs and alcohol into a proposed
rule of law, it took some of the language out of context,
untethering the “conditions” from the physical condition
resulting from drug use that was at issue in Kessler. On its
face, the selective quotation from Kessler simply applies to a
person “who is in a condition whereby he may become under
the influence of a lesser quantity of alcohol,” regardless of
the source or nature of that condition. Compare Miles, 

 (“ ‘A defendant who is in a condition whereby he
may become under the influence of a lesser quantity of alcohol than it would ordinarily take is, nevertheless, under the
influence of intoxicating liquor.’ ” (Emphasis added.)), with
Kessler, 125 SW2d at 309 (“A person who gets himself in a
condition whereby he may become intoxicated from a lesser
quantity of whisky than it would ordinarily take to produce intoxication is nevertheless intoxicated from the use
of whisky.” (Emphasis added.)). Despite the seemingly broad
reference to “physical condition” in Miles, there is nothing
else in Miles itself to suggest that we were endorsing an
instruction that would apply outside the specific context
before it—the combined use of drugs and alcohol.

         First, the other cases in the Miles string cite,
Harrell and Evans, involved questions of the combined
effects of alcohol and other drugs or ingested chemicals. In
Harrell, the defendant had been charged with violating a
Norfolk, Virginia, ordinance making it unlawful to drive
“while under the influence of alcohol … or while under the
influence of any other self-administered intoxicant or drug
of whatsoever nature.” 

. A dentist testified
that he had treated the defendant a couple of days before
his arrest for an impacted wisdom tooth and had given
him an envelope of pills containing nembutal, which was
294                                                State v. Avila

phenobarbital and aspirin and which the dentist described
as “an hypnotic.” 

. The dentist testified that the
drug makes “one sleepy, that it had an effect on the appearance of the eyes, and, as it caused a general drowsiness, it
also affected the speech.” 

 The dentist further testified
that in many respects the outward effect of the drugs was
the same as someone being drunk, and he testified that “the
more medicine taken, the greater would be its effect.” 

        On the request of the city’s counsel, the trial court
gave the following instruction:
      “The Court instructs the jury that if they believe from
   the evidence in this case beyond a reasonable doubt that
   the accused at the time in question, operated an automobile
   while under the influence of both whiskey and the pills he
   had taken, they should find him guilty.”

 The defendant on appeal challenged the giving of that
instruction, but the court, pointing to the reasoning in
Kessler, held that a person under the influence of both pills
and alcohol is still under the influence of the alcohol:
   “While it is true that there was no request for an amendment of the warrant to include a violation of the ordinance
   for driving an automobile while under the influence of a
   self-administered drug, this issue was presented by the
   testimony of the defendant. Whether the defendant, while
   driving the automobile in question, was under the influence of intoxicants, under the influence of a self-administered drug, or under the combined influence of both whiskey and the nembutal pills, was purely a question of fact to
   be determined by the jury. The instruction merely told the
   jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant was under the influence
   of ‘both whiskey and the pills he had taken, they should find
   him guilty.’ ”

 (emphasis added).
         Evans, the only Oregon citation of the three, also
involved concurrent causes of intoxication—specifically,
carbon monoxide poisoning and liquor. The defendant had
claimed that the headache and nausea he experienced while
driving, and his erratic driving, were caused by carbon monoxide poisoning from fumes that leaked into his car rather
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than the two beers that he had consumed. 

.
He argued that the jury should have been instructed as
follows:
       “ ‘The defendant has introduced evidence that the physical condition described by the arresting officer was caused
   by carbon monoxide poisoning.’
       “ ‘If after a careful consideration of all of the evidence in
   the case, there remains in your mind a reasonable doubt as
   to the cause of the defendant’s condition, that is whether or
   not it was caused by the consumption of alcoholic liquor, or
   by carbon monoxide poisoning, then the defendant is entitled to the benefit of the doubt and you shall find him not
   guilty.’ ”

.
         We rejected the defendant’s argument on the ground
that the instruction misstated the law. We explained that
the “vice of the requested instruction” was its “implication
that intoxication and carbon monoxide poisoning are mutually exclusive,” which did not allow for the “the possibility of
defendant’s having been affected by both.” 

.
          Second, Miles itself involved the same type of “physical condition” that was at issue in Kessler: the combined use
of pills and liquor. We stated that the instruction was merited because of the “defendant’s testimony that he had been
taking medication and that the pills impaired his normal
mental and physical faculties.” 

 (emphasis
added).
         Thus, although Miles approved an instruction that
was worded ambiguously regarding its scope because of how
it had cribbed from Kessler, there is nothing in the text of
Miles, or in the cases it cites, to suggest that it was approving of the instruction outside the context of specific “physical
conditions”—that is, those involving the combined effects of
alcohol and other drugs.
          Our earliest opinions referring to the “Miles instruction” involved that narrow context of drugs and alcohol. See,
e.g., State v. McKenna, 

, 664 & n 1, 

(1984) (rejecting, by way of a footnote, the defendant’s argument that it was error to give the Miles instruction where
296                                                               State v. Avila

the defendant “admitted that he had consumed some beer
and that he was taking medication that his doctor had told
him not to mix with alcohol”); State v. Kennedy, 

, 

 (1989) (declining to reach, on
preservation grounds, a challenge to the giving of the Miles
instruction where the defendant used “Eskalith, a form of
lithium carbonate” on the day in question).
         Then, in State v. Huck, 

, 197 & n 4,

 (1990), we pointed out a significant question
left open by Miles: What evidentiary foundation is necessary
to establish the nexus between the defendant’s condition
and alcohol use for purposes of an instruction on susceptibility? By the time we decided Huck, the Miles instruction
had become a Uniform Criminal Jury Instruction (then
numbered UCrJI 2706 rather than its current UCrJI 2708).
The defendant in Huck argued that the Miles instruction
should only be given when there is evidence of susceptibility. We agreed and explained that there was no evidence
in the record that the drug in question (Vicodin, in that
case) “made defendant more susceptible to the effects of
alcohol than he otherwise would have been.” 

. We
explained that, in the absence of such evidence, the instruction has the potential to confuse the jury by suggesting that
a drug “made defendant more susceptible to alcohol and that
there was evidence to that effect when, in fact, there was no
evidence of that sort.” Id.3
        Then, in State v. McFeron, 

, 

 (2000), we explained that intervening changes to
Oregon’s DUII statutes further restricted the circumstances
in which the Miles instruction should be given.4 Cases like
    3
      Cf. State v. Anderson, 

, 

 (1992) (rejecting
a challenge to the giving of the Miles instruction where there was evidence that
the defendant’s antischizophrenic medication (serentil and lithium) made him
more susceptible to the effects of alcohol); State v. Stiles, 

, 589 n 3,

 (2000) (noting that “[t]he state did not assert that defendant’s marijuana use made him more ‘susceptible’ to the effects of alcohol” and had expressly
acknowledged that it failed to establish the foundation for a Miles instruction).
    4
      In McFeron, 

 n 2, we noted the expansion from Miles to
UCrJI 2706:
        “[W]hile the Miles instruction informed the jury about the basis for determining that the defendant was driving under the influence of intoxicating
    liquor alone, UCrJI 2706 is not similarly constricted. Rather, UCrJI 2706
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Miles and Huck had involved circumstances in which the
“physical condition” was having taken drugs, but those
cases arose before the enactment of ORS 813.010(2) in 1991,
which imposed a pleading requirement in the case of DUIIs
for being under the influence of a controlled substance. The
statute provided:
        “A person may not be convicted of driving while under
    the influence of intoxicants on the basis of being under
    the influence of a controlled substance unless that the fact
    that the person was under the influence of a controlled
    substance is pleaded in the accusatory instrument and is
    either proved at trial or is admitted by the person through
    a guilty plea.”
         As we explained in McFeron, that statutory change
was significant and limited the circumstances in which the
Miles instruction should be given. At the time of Miles and
other DUII cases involving the combination of drugs and
alcohol, the statutes did not require “the state to identify
upon which of the three bases—intoxicating liquor alone,
controlled substances alone, or intoxicating liquor and controlled substances combined—a defendant was charged and
convicted.” 

. But, after the enactment of
ORS 813.010(2), the state “may not present evidence that
the defendant’s ingestion of controlled substances rendered
him or her more susceptible to the alcohol” unless the state
has pleaded that theory. 

. Consequently,
“[p]ermitting the state to couch the material contribution or
the intoxicating effects of controlled substances as a ‘physical condition’ for Miles purposes would violate the express
terms of ORS 813.010(2), render that provision meaningless
in a large number of DUII prosecutions and thereby contravene the intent for its adoption.” 

.
         In clarifying the scope of the holding in McFeron,
however, we perhaps breathed new life into the ambiguity
about the meaning of “physical condition” as the term was
used in Miles. In describing the types of underlying “physical

   permits a finding that a defendant is under the influence of ‘intoxicants’
   where the defendant’s physical condition makes the defendant more susceptible to the influence of ‘intoxicants,’ which includes either or both intoxicating
   liquor and controlled substances.”
(Emphasis in McFeron.)
298                                                State v. Avila

conditions” that could support the giving of a Miles instruction, we used imprecise language:
   “In so holding, we emphasize that we do not question Miles’
   continuing validity where the underlying ‘physical condition’ was not the product of the ingestion of a controlled
   substance and, obviously, the state may pursue a Miles
   theory based on the defendant’s ingestion of a controlled
   substance so long as the accusatory instrument conforms
   to ORS 813.010(2). The original citation here simply failed
   to do so.”

 (emphases added). There are, of course,
drug-related conditions that are not “the product of the
ingestion of controlled substances”—for instance, over the
counter medication that might interact with alcohol—but
the meaning of the sentence is not entirely clear.
         The consequences of that ambiguity, spawned in
Miles from a snippet of Kessler, surfaced soon after in State
v. Roller, 

, 

 (2002), and State v.
Curtis, 

, 

, rev den, 

(2002). In Roller, the defendant contended that the symptoms observed by the arresting officer were the product of
the flu, not alcohol consumption, and he offered testimony
by an expert who opined that “the flu can cause a nystagmus when the ears become stopped up.” 

.
The state proposed giving UCJI 2706, over the defendant’s
objection “that there was no evidence that he was in a physical condition that rendered him more susceptible to the
influence of intoxicants.” 

. Similarly, in Curtis, the
trial court gave the Miles instruction over the defendant’s
objection that there was no evidence that his fatigue was a
“physical condition” that rendered him more susceptible to
the influence of intoxicants. 

.
         In both cases, we ultimately agreed with the defendants that it was error to give the Miles instruction, but on
the ground that there was a lack of evidence that suffering
from the flu or being fatigued made a person more susceptible to the effects of alcohol. Roller, 

;
Curtis, 

. We neither endorsed nor rejected
the premise that the flu or fatigue—as opposed to the
kind of drug-induced susceptibility at issue in Kessler and
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Miles—were the types of “physical conditions” that would
support the giving of a Miles instruction.
         Over the past two decades, we have similarly
reversed the giving of a Miles instruction in three other cases
involving “physical conditions” other than drugs. See State
v. Gibbs, 

, 

 (2004) (reversing after the giving of a Miles instruction where the record
did not include any evidence that the defendant’s severe
head trauma made him more susceptible to the influence of
alcohol); State v. Massey, 

, 

(2012), rev den, 

 (2013) (“Specifically, there is no
evidence that defendant’s physical condition, attributable to
either his medication or his fatigue, rendered him more susceptible to the effects of alcohol.”); State v. Basham, 

, 

 (2019), rev dismissed, 

(2020) (“Looking to the physical conditions advanced before
the trial court—defendant’s prior injuries and tiredness—
the record contains no evidence tying those conditions to an
increased susceptibility to the effects of an intoxicating substance. Giving the Miles instruction in the absence of such
evidence was likely to mislead the jury and is, therefore,
reversible error.”).5
         From that 50-year lookback at the Miles instruction, three things are evident. First, the phrase “physical
condition” was imported from Kessler without context and
without any analysis of the text of our DUII statutes or the
way that Oregon courts had interpreted what it means to be
“under the influence of intoxicants.” Even at the time that
Miles was decided, the term “physical condition” was a part
of the test for being intoxicated—but it was the endpoint,
not the beginning of the inquiry. In State v. Robinson, the
court had interpreted former ORS 483.992 this way:
    “This statute is designed, through the punishment of
    offenders, to deter persons from driving on the public highways when they have voluntarily allowed their physical
    coordination and mental faculties to become hampered and
    5
      On two other occasions, we also accepted concessions of error by the state in
cases involving pain medication, where the state failed to offer evidence that the
medication made the defendant more susceptible to the effects of alcohol. State v.
Berning, 

, 

 (2014); State v. Rich, 

, 

 (2013).
300                                                             State v. Avila

    dulled by intoxicating liquor. The test whether a motorist
    is driving under the influence of intoxicating liquor is not
    his fitness or unfitness to drive an automobile but, rather,
    whether he has imbibed to an extent that his mental and
    physical condition is deleteriously affected. In this condition
    he increases the danger of accident that already inheres in
    the movement of automobiles in increasing numbers on our
    highways.”

, 

 (1963) (emphasis added).
         That same meaning of “under the influence” has
since carried through to our current statutes,6 and it is
reflected in the uniform jury instruction for what it means
to be “under the influence of intoxicants,” UCrJI 2701. That
instruction, which was given in this case, provides:
        “Oregon law provides that it is not unlawful for a person to drive a vehicle after having consumed intoxicating
    liquor. It is unlawful, however, for that person to drive a
    vehicle if the person is under the influence of intoxicating
    liquor.
        “In this case, you do not have to find that [defendant’s
    name] was drunk or intoxicated, as those terms are commonly understood. ‘Under the influence of intoxicating
    liquor’ means that [defendant’s name]’s physical or mental
    faculties were adversely affected by the use of intoxicating
    liquor to a noticeable or perceptible degree.
        “ ‘Under the influence of intoxicating liquor’ includes not
    only the well-known and easily recognized conditions and
    degrees of intoxication, but also any abnormal mental or
    physical condition that results from consuming intoxicating
    liquor and that deprives the person of that clearness of intellect or control that the person would otherwise possess.”
(Emphases added.)
        That, of course, is not how Miles and UCrJI 2708
use the term “physical condition.” They refer to the defendant’s “physical condition” without the alcohol—a physical
condition that creates susceptibility to intoxication. That
alone introduces some degree of circularity and confusion,
    6
      See State v. Guzman, 

, 

 (2019) (citing Robinson and
stating that “[t]he ‘perceptible degree’ standard has been part of our law for close
to a century”).
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whereby a jury is asked to determine whether the defendant
“was in such a physical condition” and “as a result of being
in that physical condition” became intoxicated by a lesser
amount of an intoxicating liquor, UCrJI 2708, which can be
determined from “any abnormal mental or physical condition that results from consuming intoxicating liquor,” UCrJI
2701. In other words, under the uniform instructions, both
given here, the intoxication can be the result of the defendant’s physical condition, and the defendant’s physical condition can be the result of the intoxication.

          Second, although we have perhaps assumed as much
for the sake of argument, we have never once held that a
defendant’s “physical condition” other than having taken
drugs or medication supports the giving of a Miles instruction, much less held that a permanent physical condition like
muscular dystrophy could support it. Apart from the circularity regarding “physical condition” in the current uniform
jury instructions, we have grave doubts that a Miles instruction would ever be appropriate when the “physical condition”
is something other than a temporary condition caused by the
ingestion of a drug, and especially where the physical condition is a permanent physical impairment. There are certainly
standards for being a licensed driver, and basic standards
for operating a vehicle safely, but it should go without saying
that Oregon law does not make it a crime for a physically
impaired person to drive a vehicle. Oregon’s DUII law criminalizes driving when a person’s physical or mental faculties
have been adversely affected by the use of an intoxicant to
a perceptible degree. State v. Mazzola, 

, 

 (2015). The physical impairment must be the result
of the intoxication, not the result of a preexisting condition
that is noticeable apart from the use of an intoxicant. One
risk of a Miles instruction in the context of a condition like
muscular dystrophy is that it will erode that distinction and
invite the jury to evaluate the defendant’s fitness or unfitness to drive rather than the degree to which impairment of
the defendant’s physical or mental faculties are caused by,
and are perceptible as a result of, an intoxicant.

        That brings us to a third and related observation
about the Miles instruction, and the one that is ultimately
302                                             State v. Avila

dispositive here. Beginning with Huck, our cases have
required the state to present evidence of a condition that
makes the defendant more susceptible to the influence of
the intoxicants, not evidence of a condition that results in
a greater degree of impairment than would be experienced
by a person without that condition. The record in this case
includes evidence that an intoxicated person with muscular
dystrophy may be more physically impaired overall than an
intoxicated person without muscular dystrophy; however, it
does not include the type of evidence that Huck requires,
which would be that muscular dystrophy makes a person
more susceptible to being adversely affected by alcohol in
the first place. For that reason, the trial court erred in giving the Miles instruction in this case.

         Again, as the uniform instruction states, a person is
under the influence of an intoxicant when the person’s physical or mental faculties are adversely affected by the intoxicant to a perceptible degree. State v. Eumana-Moranchel,

, 

 (2012) (“[T]he state can prove
that the person was ‘under the influence of intoxicating
liquor, a controlled substance, or an inhalant,’ that is, that
the defendant was adversely affected by intoxicants to a perceptible degree, ORS 813.010(1)(b), (c).” (Emphasis added.)).
The susceptibility described in the Miles instruction relates
to that question: whether someone in the defendant’s condition will be adversely affected to a perceptible degree by
a lesser amount of alcohol than a person who is not in that
same condition.

         Fahey’s testimony, viewed in the light most favorable to the state, does not support an inference that alcohol
has any greater intoxicating effect on someone with muscular dystrophy. In fact, Fahey repeatedly said the opposite.
When asked whether someone with muscular dystrophy
could “have a worsening of their general motor skills as compared to someone without muscular dystrophy with a lesser
amount of alcohol,” Fahey responded that “the impairment
and the neurological part would be the same.” Later, when
asked to clarify, Fahey repeatedly made the point that “it’s
across the board, you would have that neurological effect”
from alcohol, and that a person with muscular dystrophy
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will be affected “just like it affects a person without muscular dystrophy.”
         Fahey’s testimony also makes it clear that the
“additive” effect he was describing had nothing to do with
susceptibility to the neurological effects of alcohol. Rather,
he was describing the combination of impaired motor skills
from muscular dystrophy, which are specific to a person with
muscular dystrophy, and the neurological effects that are
caused by alcohol, which are not; together, they result in a
greater overall level of impairment as a driver. He explained,
“I think if you have the neurological coordination problem
[caused by alcohol] with the already pre-existing muscular
dystrophy problem, then you have an additive effect. That’s
what I’m trying to say.” And, when directly asked whether
there is “a difference between alcohol consumption and
motor skill use with someone without muscular dystrophy
in the same person with muscular dystrophy,” he responded
that it “adversely affects both, and if you’re already having
a hard time, that would make it [an] even harder time [with
motor skills].”
         But the question is not whether someone with
muscular dystrophy under the influence will have more
impaired motor skills than someone without that condition
who is under the influence. The question for purposes of our
DUII statute is whether the person is under the influence
in the first place, which depends on the degree of impairment from the intoxicant, not the level of overall impairment
that occurs once an already-impaired person is under the
influence.
         The state’s argument fails to appreciate that difference. In defending the instruction, the state offers a syllogism: Alcohol would be more impairing to someone with
defendant’s physical condition than it would be to someone
without that condition, and therefore, the person may be
impaired by a lesser quantity of the alcohol. As a matter of
logic, that does not follow. The degree of overall impairment
from the combined effects of alcohol and muscular dystrophy do not give rise to any inference about the amount of
alcohol that will cause a perceptible change in the faculties
of a person with muscular dystrophy.
304                                                State v. Avila

         The state’s argument only underscores the confusion that a Miles instruction can cause in a case like this,
by inviting the wrong comparison. Rather than keeping the
focus on the delta—a change in mental or physical faculties
that is caused by the alcohol—the instruction can shift the
focus to the overall level of impairment.
        In fact, that is exactly what the prosecutor invited
the jury to do. During his closing argument, the prosecutor
directed the jury to Fahey’s testimony and to the instruction about defendant’s “physical condition.” He explained
that he wanted to “touch on this instruction, because we
heard evidence by an expert in this case, a medical expert,
Dr. Fahey.” He then argued:
      “And I asked Dr. Fahey specifically: Is it wise for a person with muscular dystrophy to consume alcohol? Does
   that impair that person’s motor function to a greater
   degree than someone who does not have muscular dystrophy? And if you will recall, I actually used an example of
   driving a vehicle. If somebody without muscular dystrophy is driving a vehicle and they are using their motor
   skills to drive that vehicle, is someone with muscular dystrophy going to be affected? Are their motor skills going
   to be affected to a greater degree than someone without
   muscular dystrophy?”
          The prejudice from giving the instruction, in light
of the way the case was litigated, is manifest, and the state
does not contend otherwise. See Massey, 

(“[I]n the absence of evidence that a defendant’s physical condition made him more susceptible to the effects of alcohol,
‘the instruction [is] likely to mislead the jury to [the] defendant’s prejudice and, therefore, it should not [be] given.’ ”
(Quoting Huck, 

; alterations in Massey.)).
The instruction allowed the prosecutor to argue, without
any evidence, that someone with muscular dystrophy will
be impaired by fewer drinks and should not have consumed
any alcohol because of the overall level of impairment that
could result. Because both charges, DUII and reckless driving, were based on the theory that defendant drove while
under the influence of intoxicants, and the instruction misled the jury on that issue, we reverse and remand both convictions. See Massey, 

 (rejecting the state’s
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argument that the giving of the Miles instruction was harmless error).
        Reversed and remanded.