Utah Court of Appeals
Does a DUI instruction with alternative theories require specific unanimity instructions? State v. Cissel Explained
Summary
Deputy stopped Cissel for speeding, smelled alcohol, administered field sobriety tests, and arrested him for DUI. Blood test showed BAC of .10 and presence of cocaine metabolite. Cissel was convicted of DUI after jury trial.
Analysis
In State v. Cissel, the Utah Court of Appeals addressed whether jury unanimity issues arise when a DUI instruction lists multiple alternative means of proving intoxication, and whether defense counsel was ineffective for not excluding prejudicial drug evidence that supported the defense theory.
Background and Facts
A deputy stopped Cissel for speeding at night, detected alcohol odor, and administered field sobriety tests. After arrest, blood testing revealed a BAC of .10 and presence of benzoylecgonine, a cocaine metabolite. At trial, the jury instruction listed three alternative ways to prove DUI: (1) BAC of .08 or greater on subsequent test, (2) under the influence to degree rendering defendant incapable of safe operation, or (3) BAC of .08 or greater at time of operation. Defense counsel used the cocaine metabolite evidence to argue the blood sample wasn’t Cissel’s, since he testified he never used cocaine.
Key Legal Issues
Cissel claimed ineffective assistance of counsel for failing to request a specific unanimity instruction and for not moving to suppress the benzoylecgonine evidence. He also asserted plain error in the court’s failure to provide unanimity instructions sua sponte.
Court’s Analysis and Holding
The court distinguished between multiple-act cases requiring unanimity instructions and cases involving alternative means of proving a single element. The three DUI alternatives represent different ways to prove the same criminal act—driving under the influence—rather than separate criminal acts. Utah’s Unanimous Verdict Clause requires unanimity on each distinct crime, but not on “alternate manners or means of fulfilling an element of a crime.” Regarding the drug evidence, counsel had a reasonable strategic basis for allowing it to support the theory that the blood sample belonged to someone else.
Practice Implications
This decision clarifies that statutory alternatives within a single criminal element do not trigger unanimity concerns requiring special instructions. Defense attorneys should carefully consider whether apparently prejudicial evidence might actually support their theory before seeking exclusion. The court’s analysis reinforces the strong presumption that counsel’s strategic decisions fall within reasonable professional assistance when they serve a coherent defense theory.
Case Details
Case Name
State v. Cissel
Citation
2024 UT App 139
Court
Utah Court of Appeals
Case Number
No. 20220963-CA
Date Decided
October 3, 2024
Outcome
Affirmed
Holding
A DUI instruction listing three alternative means of proving intoxication does not create a unanimity problem requiring a specific unanimity instruction, and counsel did not perform deficiently by allowing benzoylecgonine evidence when it supported the defense theory that the blood sample was not defendant’s.
Standard of Review
Ineffective assistance of counsel claims are reviewed as a matter of law when raised for the first time on appeal. Plain error is reviewed for correctness.
Practice Tip
When drug evidence initially appears prejudicial, consider whether it can support an identity or chain-of-custody defense before moving to exclude it entirely.
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