The model jury instructions govern how many judges will instruct a jury when a motorist is charged with OUI. It is remarkable that absent from the model instruction is anything saying that is not illegal to consume alcohol and drive in the Commonwealth. When I have asked for that instruction to be added, many judges will comply while some will indicate that the jury is told that at the start of the trial that is not illegal to consume alcohol and drive.
A Fair Jury Instructions Requires the Jury to be told it is okay to consume alcohol and Drive
This instruction should be included in the final charge to the jury. The jury is told that erratic driving is not necessary to convict for an OUI; they are also told that a motorist does not have to be fallen down drunk. Those instructions are geared toward the Commonwealth and are not necessary for the jury to understand the law.
An instruction that someone can consume alcohol and drive a car is a fair instruction given the numerous instructions that favor the Commonwealth.
During Trial Attempt to make your Theory of the Case Fit the Jury Instructions
While there are some negative aspects of the jury instructions, I try to use the jury instructions during my closing to show why points I made during cross examination are important. A jury in Massachusetts is told that it can consider a persons behavior, demeanor and ability to respond promptly in determining whether someone is under the influence of alcohol. During my closing arguments, I attempt to provide examples of this, such as in control behavior, not getting upset or confrontation with the officer; additionally, ability to respond promptly is often demonstrated throughout the case, my quick response to request for license and registration, fluid conversation and immediately obeying an order to get out of the car. To see the Model Jury Instructions you can find them here.
If you want to learn more about DUI trial strategies, you can visit my Blog; one post you may find helpful is one I wrote on communication techniques inspired by a CD set I listened to my John Maxwell, called everyone Communicates Few Connect. To find the Maxwell lecture on communication you can follow this link.