State v. Waldrup

                                        387

             Argued and submitted May 25, affirmed August 9, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       GARY LEE WALDRUP,
                        Defendant-Appellant.
                     Malheur County Circuit Court
                         17CR06187; A176798
                                     

     Defendant was convicted by a jury of driving under the influence of intoxicants, ORS 813.011. Defendant appeals his conviction, contending that the trial
court committed plain error when it instructed the jury that it could consider
whether defendant was in such a physical condition that he was more susceptible
to the influence of intoxicants, i.e., the Miles instruction. Held: The trial court did
not plainly err when it provided the jury with the Miles instruction. The Court of
Appeals previously observed in State v. Avila, 

, 

 (2022),
that the Miles instruction would be appropriate in a case where a defendant’s
physical condition was the result of “drugs or medication.” The Miles instruction
was also supported by the evidence, because the state presented ample evidence
about the influences that defendant was under and how defendant’s ingestion of
controlled substances made him more susceptible to the influence of alcohol.
    Affirmed.



    Lung S. Hung, Judge.
   Sarah M. De La Cruz, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   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 Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
    JOYCE, J.
    Affirmed.
388                                         State v. Waldrup

        JOYCE, J.
         Defendant appeals his conviction for driving under
the influence of intoxicants. He raises two assignments of
error on appeal. We summarily reject defendant’s second
assignment of error, regarding failure to strike a statement
made by the prosecutor during closing argument, because
we conclude that defendant failed to preserve that claim of
error and any error is not plain. As to the first assignment
of error, defendant argues that the trial court committed
plain error when it instructed the jury that it could consider
whether defendant was in such “a physical condition” that
he was more susceptible to the influence of intoxicants, i.e.,
the Miles instruction. In defendant’s view, the court’s error
was two-fold: First, the jury instruction is plainly erroneous under a recent decision of this court and, second, even
if the substance of the instruction itself is not plain error,
the instruction was unsupported by the evidence and was
likely to confuse the jury. We conclude that the court did not
plainly err, and we therefore affirm.
         We begin by summarizing the evidence relevant to
the giving of the instruction. Trooper Marvin testified that
he stopped defendant after observing him driving without
a front license plate. When he contacted defendant, Marvin
could smell alcohol and noticed that defendant was “very
fidgety,” his eyelids were droopy and eyes glassy and bloodshot, and his pupils were constricted. Defendant was also
speaking very quickly, “licking his lips and opening and
closing his mouth really quickly, almost uncontrollably.”
Defendant admitted to drinking one beer, but Marvin did
not think that defendant’s behaviors were consistent with
having consumed one beer. Defendant later said he had two
beers. Defendant also admitted to having smoked marijuana, although his descriptions as to how recently he had
done so varied throughout the course of his conversation
with Marvin.
         Defendant agreed to perform field sobriety tests.
Marvin asked whether defendant had any medical conditions, and defendant explained that he had a back issue that
made him feel like he had “a migraine all over his body, 24/7,
or something to that effect.” Defendant said that he took
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prescription drugs but had not taken any for two to three
days.1 Defendant’s performance on the field sobriety tests
was mixed, and Marvin ultimately arrested defendant for
driving under the influence of intoxicants. During a search
of defendant’s car, Marvin discovered a case of beer, as well
as a baggie of marijuana and a marijuana cigarette.
          After defendant’s arrest, Marvin administered a
breath test. That test showed that defendant had a .04 percent blood alcohol content. That result did not, in Marvin’s
view, account for all of defendant’s symptoms, so he collected
a urine sample from defendant. That urine sample was positive for methamphetamine, its metabolite amphetamine,
and nine carboxy tetrahydrocannabinol, the relevant metabolite of the psycho-active component of marijuana.
         Another officer, Mills, conducted a drug recognition expert (DRE) evaluation on defendant. He observed
that defendant had poor coordination, mumbled speech, and
bloodshot and glassy eyes. He also noted that defendant’s
“behavior was very cyclic. Sometimes [defendant] was very
angry or agitated, and then there’d be other times that he
would be laughing and joking[.]” During the evaluation,
Mills observed signs of both a central nervous system stimulant and a narcotic analgesic. Mills believed that some
of defendant’s behavior was consistent with methamphetamine use, although defendant denied ever having used
that drug. Mills ultimately concluded that defendant was
under the influence of a combination of alcohol, marijuana, a
central nervous system stimulant, and a narcotic analgesic.
         The state charged defendant with driving under
the influence of alcohol and/or controlled substances. See
ORS 813.010(2) (if the state intends to rely on a theory that
a defendant’s impairment was caused in part or in whole by
a controlled substance, the state must plead that theory in
the indictment).
         During defendant’s trial, in closing argument, the
state contended that defendant’s use of drugs made him more
susceptible to the influence of alcohol. Although the state
also made several references to defendant’s back condition,
   1
       Defendant later said he had not taken pain medication in the past week.
390                                           State v. Waldrup

the state’s focus was on the combination of intoxicants that
defendant had consumed and distinguished the impairment
caused by his back condition from that caused by the intoxicants. In fact, the state argued that defendant’s back pain
had “nothing to do with 90% of the signs of impairment”
that the officers observed.
        At the close of trial, the trial court instructed the
jury based on Uniform Criminal Jury Instruction 2708. That
instruction provides that the jury can consider whether a
defendant has a physical condition that renders them more
susceptible to the influence of intoxicants:
       “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 the defendant would have otherwise been, and as a result of being
   in that physical condition the defendant became under the
   influence by a lesser quantity of intoxicants than it would
   otherwise take, the defendant is nevertheless under the
   influence of intoxicants.”
That instruction is commonly referred to as the Miles
instruction, based on State v. Miles, 

,

, rev den (1972). See State v. Avila, 

, 

 (2022) (so stating).
          Defendant assigns error to the giving of that Miles
instruction. Defendant did not object to the giving of the
instruction below but argues that it is plain error. More
specifically, he argues that our recent decision in Avila—
in which we addressed the genesis and ongoing propriety
of the Miles instruction—renders the instruction in this
case plainly erroneous. He argues that, in Avila, we distinguished between circumstances in which a defendant’s condition is caused by controlled substances and circumstances
in which a defendant’s condition is caused by “medication”—
by which we understand him to mean medicines that are
not controlled substances—and that our reasoning in Avila
means that the instruction is an incorrect statement of the
law any time a defendant’s physical condition is not caused
by “medication.” He alternatively argues that the trial court
erred in giving the instruction because it was, when viewed
in light of other instructions given, likely to confuse the jury,
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inasmuch as the jury could have believed that the “physical
condition” referred to in the Miles instruction referred to
defendant’s back injury, and not controlled substances. As
explained below, we disagree.
          Because Avila forms the basis for defendant’s arguments on appeal here, we discuss it in some detail. There,
the state charged the defendant with driving under the
influence. Avila, 

. At trial, the defendant testified that he suffered from muscular dystrophy and
that it was that condition, not alcohol, that caused the symptoms that he exhibited when police stopped him while driving. 

. An expert testified about the impact on one’s
motor skills from a combination of alcohol use and muscular
dystrophy, explaining that alcohol use would make someone
with the disease have an “even harder time.” 

.
Over the defendant’s objection, the trial court gave a Miles
instruction. 

.
         The defendant appealed, and we reversed. 

.
A critical question in the case was what the Miles instruction means when it uses the term “physical condition”—
namely, 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.” 

. We
thus explored to what extent the instruction had been used
in prior case law outside the specific context of “the combined use of drugs and alcohol.” 

. We noted that the
cases that we relied upon in our Miles decision all involved
combined effects of alcohol and other drugs or chemicals,
and indeed, Miles itself involved a combined use of pills and
liquor. 

. Additionally, post-Miles, we regularly
upheld the giving of the instruction in cases in the “narrow context of drugs and alcohol,” and, concomitantly, we
consistently reversed the giving of the instruction in cases
that involved “ ‘physical conditions’ other than drugs.” 

.
        From that survey, we observed in Avila that we
had “never once held that a defendant’s ‘physical condition’
other than having taken drugs or medication supports the
giving” of the Miles instruction. 

 (emphasis added).
We expressed “grave doubts” that the instruction would ever
392                                         State v. Waldrup

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.” 

 That is because Oregon
law “does not make it a crime for a physically impaired person to drive a vehicle”; instead, Oregon’s 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.” 

 And that 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.” 

        From there, we reached our dispositive point, namely,
that our cases have required 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.” 

. Yet the evidence in Avila—while showing that someone with muscular
dystrophy may be “more physically impaired overall than an
intoxicated person” without that condition—did not include
any evidence that the defendant’s muscular dystrophy made
him more susceptible to being adversely affected by alcohol.

. Thus, the trial court erred in giving the Miles
instruction. 

.
         Relying on Avila, defendant here asserts that the
trial court erred in giving the Miles instruction. His argument is, as we understand it, twofold: (1) in Avila, we “limited the application of a Miles instruction to only cases that
involve the ingestion of medication[,]” as opposed to controlled substances, and, thus, the instruction was an incorrect statement of law in this case, where the evidence showed
that defendant had ingested controlled substances, and
(2) the Miles instruction was not supported by the evidence
and was likely to confuse the jury. Defendant acknowledges
that his argument on appeal is unpreserved and, therefore,
asks us to review for plain error and to exercise our discretion to correct plain error.
         As to defendant’s first point—that Avila limited
application of the Miles instruction to instances in which the
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defendant ingested medication, not controlled substances,
and, thus, the instruction was error—we disagree that any
error is plain. As just described, in Avila, although we called
into question the instruction in the context of a permanent
physical condition like the one the defendant in Avila had,
we did not question use of the instruction when the “physical
condition” is caused by medication or controlled substances.
That is because the appropriateness of the instruction in
the context of a permanent physical condition was the issue
before us in Avila: We were focused on whether the Miles
instruction was appropriate in the context of an individual
who has a permanent physical condition; the defendant did
not assert that the instruction was improper when a defendant’s physical condition is the result of ingestion of controlled substances and/or medication.
         Yet, at the same time, we repeatedly observed in
Avila that the Miles instruction would be appropriate in a
case where a defendant’s physical condition was the result
of “drugs or medication,” while simultaneously expressing
doubts about the propriety of the instruction “outside the
context of drugs or medications” that made the defendant
more susceptible to the influence of alcohol.2 E.g., Avila, 318
Or at 286, 293, 301. We used “drugs” to refer to controlled
substances, as set apart from other prescription or over-thecounter medication, as is evident in light of our discussion
of a statutory change that required the Miles instruction to
more specifically state that “intoxicants” includes “either or
both intoxicating liquor and controlled substances.” Avila,

 n 4 (quoting State v. McFeron, 

, 117 n 2, 

 (2000)).
        To be sure, as defendant observes, some of the
cases we discussed in Avila involved the combined use of
medication (prescription) and alcohol. E.g., State v. Kennedy,
    2
      We did note that we had previously held that, if the state had not charged
the defendant with DUII based on a combination of alcohol and controlled substances, see ORS 813.010(2), “it is improper to instruct the jury under Miles
that the taking of controlled substances is a ‘physical condition’ that materially increased a defendant’s susceptibility to the alcohol.” State v. McFeron, 

, 

 (2000); Avila, 

 (summarizing
the holding of McFeron). As noted above, in this case, defendant was charged
with driving under the influence of a combination of alcohol and/or a controlled
substances.
394                                         State v. Waldrup

, 

 (1989) (combined use of
medication and alcohol). And yet in other places, we simply
referred to the combined influence of “drugs,” which could be
read to include either medication or controlled substances, or
both. Avila, 

. But in the context of the question that we were required to answer in Avila, and, in light of
the repeated references to drugs/controlled substances and
medications, we cannot say that defendant’s legal point—
that Avila limits the Miles instruction to impairment caused
by medication, not controlled substances—is “obvious, not
reasonably in dispute.” State v. Brown, 

, 

 (1990).
         We also disagree with defendant’s alternative
argument—that the trial court committed plain error—
because the evidence in this case did not support a Miles
instruction and the instruction was likely to confuse the
jury. Defendant asserts that the record is devoid of evidence
that defendant’s physical condition made him more susceptible to the effects of an intoxicant. That argument, as we
understand it, is built upon two alternate premises: the
first, that defendant’s medical conditions did not provide a
factual basis to give the Miles instruction because the state
did not present evidence that “a person with defendant’s
medical conditions would be more susceptible to the effects
of an intoxicant,” and the second that Miles “applies only to
drugs (medicine) that are not controlled substances.”
         We have already explained above why defendant’s
second premise is not viable, at least in the plain error context. As to the first, as the state observes, the evidence in
the case did support the instruction based on a physical
condition caused by controlled substances that made him
more susceptible to the effects of alcohol; the state presented
ample evidence from the officers and experts about the influences that defendant was under and how defendant’s ingestion of controlled substances made him more susceptible
to the influence of alcohol. We cannot say that it was plain
error to give an instruction that was supported by the state’s
theory of the case and the evidence presented. See State v.
Williamson, 

, 

, rev den, 

 (2007) (a party “is entitled to a jury instruction on
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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”).
          Lastly, we reject defendant’s contention that the
trial court committed plain error because the Miles instruction was likely to confuse the jury. In defendant’s view,
given other instructions that permitted the jury to consider
the combined effect of controlled substances and alcohol in
determining whether defendant was under the influence,
it would understand the Miles instruction’s use of “physical condition” to mean that it could also consider whether
defendant had a physical condition (i.e., his back injury) that
made him susceptible to being under the influence. On this
record, particularly given the state’s focus on defendant’s
use of drugs and alcohol and defendant’s increased susceptibility to the influence of one given the other, we cannot
say that the jury would necessarily so infer. In this context,
if defendant was concerned about how the jury might construe the instruction vis à vis defendant’s medical condition,
it was incumbent upon him to ask for a limiting instruction
or otherwise seek to clarify the instruction.
        Affirmed.