dissenting.
I dissent from that portion of the majority decision which asserts that the jury was properly instructed in “the legal principles applicable to their consideration of the evidence.” Unfortunately, the jury was not so properly instructed; and perhaps more unfortunately, counsel for Lesley did not adequately focus upon the crux of my concern in the briefing and argument. Nevertheless, I think that counsel came close enough1 to raise the issue for this Court’s consideration.
*28In a nutshell, Lesley was prosecuted under Idaho Code section 18-8004(5) which then stated in pertinent part: “It is unlawful for any person who is under the influence of any combination of alcohol and any drug to a degree which renders him incapable of safely driving a motor vehicle, to drive or be in actual physical control of a motor vehicle within this state.”2 Emphasis added. Instruction Number 10, given by the court to the jury and listing those material elements of the offense that need to be proved beyond a reasonable doubt, requires that the defendant be “under the influence of an intoxicating substance or under the influence of a combination of alcohol or any drug or nonnarcotic drug to a degree which renders the defendant incapable of safely operating a motor vehicle.” Emphasis added. Instruction No. 13, however, reads as follows: “To prove that someone was under the influence of alcohol or narcotic drugs or intoxicating substances it is not necessary that any particular degree or state of intoxication be shown. The State need only show that the defendant had consumed sufficient alcohol or had used enough of the narcotic drug or an intoxicating substance to influence or affect the defendant’s ability to drive the motor vehicle.” Emphasis added.
It is abundantly dear, and quite beyond cavil, that these two instructions are inherently conflicting, contradictory and inconsistent. The standard of proof — to a degree which renders one incapable of safely operating a motor vehicle — is certainly quantitatively higher than one which merely requires a sufficiency to influence or affect one’s ability to drive a motor vehicle. This conflict and inconsistency is further compounded by the fact that the jury sent a note to the court which read: “Please give us a definition of sufficient as used in Instruction No. 13.” The trial court declined to give any further definition.
“When contradictory instructions are given to a jury on a material issue, the error is prejudicial. A contradictory statement of the law in one part of the instructions cannot be cured by reference to a correct statement of the law in another.” State v. Andrus, 118 Idaho 711, 716, 800 P.2d 107, 112 (Ct.App.1990). The. Andrus decision, on a similar DUI instruction issue, mandates reversal in this case. The inconsistency and contradictory nature of the two instructions given here are far more compelling and egregious than *29in Andrus. Accordingly, I respectfully dissent.3
. In his brief, counsel for defendant raised the following argument:
*28The jury was confused by Instruction 13 and the evidence presented, and sent a note to the Court, requesting further Instructions. The jury note stated: Please give us a definition of sufficient as used in Instruction No. 13.
Instruction No. 13 reads:
To prove that someone was under the influence of alcohol or narcotic drugs or intoxicating substance, it is not necessary that any particular degree or state of intoxication be shown. The State need only to show that the Defendant had consumed sufficient alcohol or had used enough of a narcotic drug or intoxicating substance to influence or affect the Defendant’s ability to drive the motor vehicle.
Clearly, Instruction 13 begets need for some aspect of quantification, and there must be some backdrop upon which a jury can judge the meaning and need of sufficient, in light of "other competent evidence” as intended by Idaho law.
The Lower Court (Magistrate) merely felt Instruction 10 and 13 gave the jury sufficient focus on the law and would allow the jury to make a decision based upon the facts presented, so the Court declined to give the additional instruction of the statutory language requested. Instruction 10 and 13, standing alone merely beg the question in themselves and read in context with the other Instruction provides no answer to their concern to find sufficient alcohol, or had enough drug or intoxicating substance, to influence or affect the ability to drive, or influence that ability to a degree to render Defendant incapable of safely operating a vehicle.
The law is clear the mere presence of alcohol or a drug substance is not sufficient, in itself to support a finding of guilt under existing DUI laws. It requires competent evidence to show a sufficiency; it requires the use of enough; and neither "sufficiency” or "enough” was demonstrated in this case let alone any opinion given on such drug presence to be a sufficiency or enough for a finding of influence or impairment.
. Subsection (5) of the statute has since been amended to delete the language "renders him incapable of safely driving” and replaced with "impairs the driver’s ability to safely operate ...” 1997 Session Laws, ch. 307, 913.
. Defendant Lesley is now left with two unenviable options: she must either serve the 180-day jail sentence (the maximum) imposed for the DUI or file a Post-Conviction Act petition for ineffective assistance of counsel and hope for some relief through this procedural mechanism.