¶1concurring.
¶2I concur but with respect to Part I would go a step further than does the majority holding that the instruction in question was harmless error.
¶3Not only do I think such instruction is error and should not be given in any such case, I am unable to agree that the language used in the appellate court cases cited is appropriate in any context. To this extent, I would state a disapproval of Ackerman v. State, Pickens v. State, and Ballinger v. State.
¶4As an example, I cannot subscribe to an implication that the trier of fact may appropriately conclude that impairment has been proved beyond a reasonable doubt merely because the person in question has “watery or bloodshot eyes.” I would voice the same concern with regard to the individual’s “unsteady balance” or mere “slurred speech.”
¶5I would not dispute that it might be rational for a trier of fact to consider all or a multiple combination of several of the seven enumerated such factors, but as we hold today, such rationale should not be imparted to the jury by way of formal instruction.