Forget all your legal training. Pretend you are a juror in a DWI case. Facts. The following facts were established at trial: The defendant was stopped at a checkpoint. The officer smelled alcohol and defendant admitted that he had consumed two glasses of wine earlier in the evening. No field sobriety tests were administered, and the defendant was arrested. He blew into the breath testing machine, which registered a result of .08. The officer asked the defendant to blow a second time. The defendant appeared to blow, but the result did not register. The officer believed that the defendant intentionally refused to provide a second sample and terminated testing. The defendant testified that he did not refuse testing, but was unable, due to asthma, to blow sufficiently hard a second time to register a result. The officer testifies on cross-examination that he occasionally has seen breath test results vary, with the second test being lower than the first. The defendant’s attorney argued that the result of defendant’s second test, had he been able to provide a sufficient breath sample, easily could have been a .06 or lower. He insists that the State has failed to prove that the defendant was driving while impaired. Jury Instructions. The judge tells the jury that, to find the defendant guilty of impaired driving, the State must prove three things beyond a reasonable doubt: First, that the defendant was driving a vehicle; Second, that the defendant was driving that vehicle upon a street within the State; [...]
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