To prove that a person drove a vehicle while under the influence of an impairing substance in violation of G.S. 20-138.1(a)(3), the State must establish that the defendant was impaired by
- [a]lcohol ,
- a controlled substance under Chapter 90 of the General Statutes,
- some other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or
- a combination of these substances.
G.S. 20-4.01(14a) (defining impairing substance).
When a defendant is tried before a jury on such charges, who determines whether the defendant was so impaired? Obviously it is the jury. Right?
Pattern Jury Instructions. Readers may be surprised to learn that the pattern jury instructions direct the judge in such a case to tell the jury: “(Name substance involved) is an impairing substance.” North Carolina Pattern Instructions—Criminal 270.00. The judge then goes on to state that the defendant “is under the influence of an impairing substance when the defendant has taken (or consumed) a sufficient quantity of that substance to cause the defendant to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of those faculties.” Id.
Is an instruction from the judge that a particular substance is an impairing substance proper? Or does it improperly permit the judge to resolve a material fact, namely whether the specific substance the defendant is alleged to have taken or consumed is an impairing substance? The answer probably depends on the substance. For example, a judge’s instruction to the jury that “alcohol” or “a controlled substance under Chapter 90” is an impairing substance would not invade the province of the jury. That sort of instruction simply defines the term “impairing substance.” Likewise, an instruction that “a drug or psychoactive substance capable of impairing a person’s physical or mental faculties is an impairing substance,” is not objectionable.
Furthermore, there would appear to be no problem with a judge instructing the jury that any of the specific substances listed in Chapter 90 is an impairing substance. Thus, the judge could properly inform the jury that a substance such as cocaine, alprazolam (Xanax), or zolpidem (Ambien) is an impairing substance. See G.S. 90-90(1)c.; 90-92(a)(1)a.; 90-92(a)(1)ww.
In some drugged driving cases, however, the substance that a defendant is alleged to have consumed is not a controlled substance under Chapter 90. The State may contend, for example, that a defendant is impaired from inhalants or from prescription medication that is not a scheduled controlled substance. In this circumstance, it seems to me that it would be improper for the judge to instruct the jury that the specified drug (such as, for example, sertraline (Zoloft)) is an impairing substance.
Deadly Weapon Analogy. There is at least one other circumstance in which our state appellate courts have permitted judges to instruct the jury as to its determination on a material fact. In State v. Torain, 316 N.C. 111 (1986), the state supreme court determined that the trial court did not err in instructing the jury in a first-degree rape trial that “a utility knife is a dangerous or deadly weapon.” Id. at 116. The court relied on earlier opinions stating that when “the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly, . . . is one of law, and the Court must take the responsibility of so declaring.” Id. at 119 (internal citations omitted). Even were this reasoning to be applied in the drugged driving context, however, it likely would authorize no more than instructing the jury that a specific substance scheduled under Chapter 90 is an impairing substance. Those substances are per se impairing in much the same way that certain weapons are per se deadly. The judge still must leave to the jury the determination of whether other types of “drugs or psychoactive substances” are impairing substances. Cf. Jessica Smith, North Carolina Crimes 120-121 (7th ed. 2012) (distinguishing circumstances involving weapons that “are deadly by their very nature” from those in which the jury must be permitted to decide whether the weapon is deadly).
What if the State fails to identify the impairing substance? In some circumstances, the State is unable to definitively identify the substance by which a defendant allegedly was impaired. This is not fatal to its case, however, as there is no requirement that the State prove the specific impairing substance consumed. See State v. Lindley, 286 N.C. 255 (1974) (state established prima facie case based in part on patrol officer’s testimony that the defendant was under the influence of “some drug”); State v. Cousins, No. COA01-796, 152 N.C. App. 478 (2002) (unpublished) (evidence of defendant’s poor performance on field sobriety tests, his refusal to submit to a blood test, and his admission to taking Lortab, a painkiller, were sufficient to show that he was impaired and that his impairment was caused by an impairing substance; the State was not required to produce expert testimony on the impairing effects of Lortab and whether defendant’s condition was consistent with someone who had taken Lortab). When this occurs, the court should instruct the jury on the definition of “impairing substance,” but should refrain from identifying any particular substance for which the State has failed to establish a prima facie case.