STATE v. GIBBS (2004)

Defendant appeals his conviction for Driving Under the Influence of Intoxicants, ORS 813.010(1).   His defense at trial was that he had previously suffered a severe head trauma and that the apparent symptoms of intoxication that the officer observed were in fact the result of that injury.   Over his objection, the trial court gave Uniform Criminal Jury Instruction 2076, which informs the jury that a defendant whose physical condition makes the defendant more susceptible to the influence of alcohol than the defendant would otherwise be is nevertheless under the influence of intoxicants.   See State v. Miles, 8 Or.App. 189, 492 P.2d 497, rev. den. (1972).

We have held that there must be evidence that the defendant's condition made him more susceptible to the influence of alcohol before a trial court may give a Miles instruction.  State v. Huck, 100 Or.App. 193, 197, 785 P.2d 785 (1990).   There is no such evidence in this case.   Giving a Miles instruction in the absence of that evidence is reversible error.   See State v. Curtis, 182 Or.App. 166, 169, 47 P.3d 929, rev. den., 335 Or. 104, 59 P.3d 1279 (2002).   The state concedes that the trial court erred, and we agree.

Reversed and remanded for a new trial.

 PER CURIAM.