IN THE FOURTH JUDICIAL DISTRICT COURT, STATE OF UTAH, UTAH COUNTY, PROVO DEPARTMENT

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1 ANTHONY HOWELL (9506) UTAH COUNTY PUBLIC DEFENDER ASSOC. Attorney for Defendant 245 North University Ave. Provo, Utah Telephone: (801) IN THE FOURTH JUDICIAL DISTRICT COURT, STATE OF UTAH, UTAH COUNTY, PROVO DEPARTMENT STATE OF UTAH Plaintiff, DEFENDANT S SUPPLEMENTAL JURY INSTRUCTIONS v. JUDY ANN MEINE, Defendant. Case No JUDGE CLAUDIA LAYCOCK The Defendant, by and through counsel, Anthony Howell, requests the attached supplemental jury instructions be included with the Court s instructions to the jury in the aboveentitled matter. DATED this day of April, Anthony Howell

2 MAILING CERTIFICATE I hereby certify that I mailed postage prepaid this day of April, 2004, a copy of the foregoing JURY INSTRUCTIONS AND JURY QUESTIONNAIRE to the following: Jeffrey Buhman 150 East Center, Suite 2100 Provo, Utah 84601

3 QUESTIONS the Defendant requests be included with the Court s JURY QUESTIONNAIRE Do you believe the fact someone has been charged with a crime is evidence of that person s guilt? Do you believe a police officer s testimony is more believable simply because he/she is a police officer? Have you or any member of your family ever been charged with a crime? If so, who, and for what? Have you or any member of your family ever used illegal drugs? Have you or any member of your family ever been arrested for Driving Under the Influence? Have you or any member of your family ever consumed alcohol? What two people do you most admire? What two people do you least admire? To what clubs, associations, organizations, or teams are you a member or associated?

4 INSTRUCTION NO. In all criminal cases, the State is required to prove each element of the crime charged against a defendant beyond a reasonable doubt. This burden of proof is required to be based only on the legal evidence presented in court. You must keep in mind in assessing whether the State has met its burden of proof beyond a reasonable doubt that the burden never shifts to a defendant to call any witnesses, produce any evidence or disprove any element of the crime charged. The term reasonable doubt means doubt based on reason and common sense; it is doubt for which a reason can be given based upon the evidence. Proof beyond a reasonable doubt does not require proof to an absolute certainty but requires that degree of proof which satisfies the mind and convinces the understanding of those who are bound to act conscientiously upon it. The State s proof must obviate any reasonable doubt. If after impartial consideration of all the evidence you have a reasonable doubt of a defendant s guilt, you must acquit that defendant. If, on the other hand, after consideration of all the evidence you have no reasonable doubt, you should find such defendant guilty.

5 INSTRUCTION NO. The term actual physical control as used in Count I, Driving under the Influence of Alcohol, is intended to prevent intoxicated individuals from entering their vehicles except as passengers or passive occupants. In this matter, to find Defendant guilty of this offense, besides the other elements of the offense, you must find, beyond a reasonable doubt, and from the totality of the circumstances, that Defendant, on the date in question, occupied a motor vehicle other than as a passenger or passive occupant.

6 INSTRUCTION NO. You are instructed that no single factor is dispositive of the question whether the defendant was in actual physical control of a vehicle, or whether she was a passive occupant in the vehicle. You are to look at the totality of the circumstances. Some of the following factors may be relevant in your determination of whether the defendant was in actual physical control of a vehicle, or whether she was a passive occupant in the vehicle. However, none of theses factors is dispositive nor is this list all-inclusive: 1. Whether the defendant was awake or asleep when discovered. 2. The position of the vehicle. 3. Whether the vehicle s engine was running. 4. Whether the defendant was positioned in the driver s seat of the vehicle, and is so, how the defendant was position in the driver s seat of the vehicle. 5. Whether the defendant was the vehicle s sole occupant. 6. Whether the defendant had possession of the ignition key. 7. The defendant s apparent ability to start and move the vehicle. 8. How the vehicle got to where it was found. If, under a totality of the circumstances, you find beyond a reasonable doubt that the defendant was in actual physical control of a motor vehicle, along with all the other elements of the offense, then you must return a verdict of GUILTY. If, however, under a totality of the circumstances, you have reasonable doubt as to whether the defendant was in actual physical control of a motor vehicle, then you must return a verdict of NOT GUILTY.

7 INSTRUCTION NO. Actual physical control over a motor vehicle may occur even though the defendant did not subjectively intend to use it. However the defendant s subjective intent to operate the motor vehicle is a factor in considering, under a totality of the circumstances, whether the defendant was in actual physical control over a motor vehicle or whether the defendant was a passive occupant of a motor vehicle.

8 INSTRUCTION NO. You are instructed that the defendant must have been either operating the vehicle or in actual physical control of the vehicle to be convicted of driving under the influence of alcohol and/or drugs. Actual physical control means that the defendant had the apparent ability to start and move a motor vehicle, and was not acting as a passenger or passive occupant of the motor vehicle. Actual physical control does not necessarily mean that the defendant actually operated, moved, or attempted to move the vehicle.