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BURNETT, BURT LEE

PD-0576-16 09/28/2016

"Did the court of appeals misapply this Court's decision in Ouellette v. State in determining that the inclusion of the full statutory definition of intoxication in a jury charge constitutes harmful error?"

Burnett was arrested for DWI after he rear ended a car, smelled of alcohol, had slurred speech, and performed poorly on field sobriety tests. Officers discovered twenty pills in his pocket that they believed were hydrocodone. Over Burnett's objection, the trial court admitted a video of the scene that shows the officers finding the pills and speculating on their makeup.

The court of appeals held that Burnett's possession of unidentified prescription pills was irrelevant without evidence that: he took any of them, they were intoxicants, or he was intoxicated as a result of taking them. And although the State is not required to prove the type of intoxicant ingested, it reasoned that the State is not permitted to admit evidence of any drug found in the defendant's possession without expert testimony connecting the drug to the defendant's intoxication. It held that the trial court erred by instructing the jury on the full definition of intoxication that included alcohol, drugs, or a combination instead of limiting the definition to alcohol. The court reasoned that, without evidence of drug intoxication, the reference to drugs in the charge was not relevant to the case. It noted that in Ouellete, the Court of Criminal Appeals did not need to reach the question of whether a trial court could err by submitting the full definition because, in that case, there was evidence of drug intoxication.

The State argues that Ouellete is not distinguishable, even though the officer in that case testified that the drugs the defendant possessed were central nervous system depressants. The State notes that in both cases, the defendants were arrested before the pills were discovered, the officers suspected alcohol intoxication, and there was no direct evidence that the defendants had taken any of the pills.

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