concurring.
I concur in the result, but write separately to clearly express my view as to the error which occurred in this case.
The majority is correct that Instruction No. Ill was redundant and confusing. However, I disagree with the linkage which has been created between “driving under the influence of alcohol” and impairment of driving ability.
Properly interpreted, KRS 189A.010(1) may be violated in either of two ways. First, a violation occurs when a person operates a motor vehicle “while under the influence of alcohol.” Second, a violation occurs when a person operates a motor vehicle while under the influence of “any other substance which may impair one’s driving ability.” When the alleged violation is based solely on the consumption of alcohol, the statute does not require proof of impairment of driving ability; only that the driver was under its influence. When the violation is based on the use of another substance, there must be proof that such substance is capable of impairing driving ability.
In the typical case in which the evidence indicates driving while under the influence of alcohol, the primary instruction should require the jury to determine whether the defendant was operating a motor vehicle in this State and whether he was under the influence of alcohol. Such an instruction is consistent with the statutory presumptions and properly frames the issue for jury determination. Unless there is evidence to support it, the instruction should omit reference to other substances which may impair driving ability.
REYNOLDS, J., joins in this concurring opinion.