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Corpus Delecti

The traditional crime of "drunk driving" is commonly considered to be driving a motor vehicle on a road or highway while under the influence of intoxicating liquor (DUI). In a few states (notably Texas), the offense is defined in terms of driving while intoxicated (DWI). Some states (Oregon, for example) use the term "operating" (OUI or OUII - operating under the influence of intoxicants), while still others refer to being in "actual physical control" of the vehicle. The newer so-called per se offense, on the other hand, consists of driving/operating/being in control of a vehicle on a road or highway with an excessive blood alcohol concentration - either .08 or .10 percent, or greater, depending upon the state. Absent additional factors, these offenses are generally considered to be misdemeanors. In most states, both offenses will be charged where the evidence supports it.

The corpus delecti, then, consists of three elements. For the traditional DUI/DWI offense, that corpus is:

1. Driving or operating or being in control of a motor vehicle;
2. On a road or highway (or anywhere within the state);
3. While under the influence of alcohol (or while intoxicated/inebriated).

The new per se offense simply alters one of those elements:

1. Driving or operating or being in control of a motor vehicle;
2. On a road or highway (or anywhere within the state);
3. With a blood-alcohol concentration of .08 percent (or. 10 percent) or higher.

In the initial analysis of any drunk driving case, counsel should be particularly careful to consider the possibility that the prosecutor's corpus is not complete. All too often, the prosecutor - and defense counsel - immediately concentrate on that portion of the corpus that is the only contention in the vast majority of such cases: whether the defendant was under the influence of alcohol or had an excessive blood-alcohol level. And, all too often, the prosecutor and defense counsel overlook the simple fact that the defendant was not observed driving. A common situation is the discovery of an intoxicated defendant sitting in a car that is wrapped around a telephone pole. The conclusion that the defendant was driving - particularly if the car is registered to him - may be logical, even automatic, but it may not be legally sufficient. Nothing should be assumed: the prosecution case should always be checked against the three-point corpus, rather than just against the question of intoxication.

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