NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) If resulting in personal injury: DD, TF, 18 months, E-1. (Category 2)
(2) No personal injury: BCD, TF, 6 months, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did (at/on board--location), on or about __________, (in the motor pool area) (near the Officer’s Club) (at the intersection of __________ and __________) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) (__________)] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (__________)] [a vessel, to wit: (the aircraft carrier USS __________) (the Coast Guard Cutter __________) (__________)], [while drunk] [while impaired by __________] [while the alcohol concentration in (his) (her) (blood or breath) equaled or exceeded the applicable limit under subsection (b) of the text of the statute in paragraph 51 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) injure __________)].
c. ELEMENTS:
(1) That (state the time and place alleged), the accused was (operating) (in physical control of) a (vehicle) (aircraft) (vessel), to wit: __________; (and)
(2) That the accused (operated) (physically controlled) the (vehicle) (aircraft) (vessel)
(a) in a (reckless) (and) (wanton) manner by (state the alleged manner);
(b) while (drunk) (and) (impaired by (state the drug alleged));
(c) when the alcohol concentration in (his) (her) (blood) (breath) was equal to or greater than (0.08 grams) (___ grams) or more of alcohol per (100 milliliters of blood) (210 liters of breath)), as shown by chemical analysis; [and]
NOTE 2: Injury alleged. If an injury is alleged, add the following element:
[(3)] That the accused thereby caused the (vehicle) (aircraft) (vessel) to (strike and) injure (state the name of the alleged victim).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 3: Vehicle, aircraft, and vessel defined. The following definitions should be given, as applicable.
(“Vehicle” includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.)
(“Aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.)
(“Vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)
NOTE 4: Operating. If the accused is charged with operating a vessel, aircraft, or vehicle, give the first instruction below. The second instruction may be helpful.
“Operating” includes not only driving or guiding a (vehicle) (aircraft) (vessel) while in motion, either in person or through the agency of another, but also the setting of its motive power in action or the manipulation of its controls so as to cause the particular (vehicle) (aircraft) (vessel) to move.
(Thus, one may operate a (vehicle) (aircraft) (vessel) by pushing it, setting its motive power in action by starting the engine or otherwise, or releasing the parking brake of a vehicle on a hill so the vehicle rolls downhill.)
NOTE 5: Controlling. If the specification alleges “control” of the vehicle, aircraft, or vessel, the instruction that follows should be given. The military judge should be alert to situations where the ability to control, although present, is so remote that extending criminal culpability to such conduct is outside the intent of the statute. The literal language of the instruction that follows is so broad that it seems to cover a person with the authority and practical means to direct the steering or movements of a vessel, vehicle, or aircraft, even where no attempt at control was made and no causal connection existed between the person’s consumption of alcohol or drugs and the operation of the vessel, vehicle, or aircraft. For example, a ship’s captain drunk in his cabin who made no effort to direct the ship’s course, despite his authority and capability (via intercom) to do so, seems to be covered by the “control” definition taken from the Manual. Additionally, a person in the passenger seat, even with the engine turned on or capable of starting the engine, is not in “control” of the vehicle. See US v. Scheurer, 62 MJ 100, 110 (CAAF 2005); US v. McCullough, 2024 CCA Lexis 198 (ACCA 2024). In such a situation, tailoring the example (taken directly from the MCM) may be necessary.
(“Physically controlling”) (“In actual physical control”) mean(s) that the accused had the present capability and power to dominate, direct, or regulate the (vehicle) (aircraft) (vessel), either in person or through the agency of another, regardless of whether such (vehicle) (aircraft) (vessel) was operated.
(For example, an intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition, but with the engine not turned on, could be deemed in actual physical control of that vehicle. (However, a person asleep in the back seat with the keys in his or her pocket would not be deemed in actual physical control.))
NOTE 6: Reckless or wanton. If it is alleged that the accused operated or physically controlled the vehicle, aircraft, or vessel in a reckless or wanton manner, give the instructions below, as applicable.
“Reckless” means a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care; that is, (an act) (or failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the safety of others which a reasonably careful person would have used under the same or similar circumstances. “Recklessness,” on the other hand, is a negligent (act) (failure to act) combined with a culpable disregard for the foreseeable consequences to others. “Reckless” means that the accused’s manner of operation or control of the (vehicle) (aircraft) (vessel) was, under all the circumstances, of such a heedless nature that made it actually or imminently dangerous to the occupant(s) or to the rights or safety of (others) (another). (Recklessness is not determined solely by reason of the happening of an injury, or the invasion of the rights of another, nor by proof alone of excessive speed or erratic operation, although all these factors may be relevant as bearing upon the question of recklessness.)
“Wanton” includes reckless, but in describing the operation or physical control of a (vehicle) (vessel) (aircraft), wanton may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.
(In deciding whether the accused (operated) (physically controlled) the (vehicle) (aircraft) (vessel) in a (reckless) (wanton) manner, you must consider all the relevant evidence, (including, but not limited to: the (condition of the surface on which the vehicle was operated) (time of day or night) (traffic conditions) (condition of the (vehicle) (aircraft) (vessel) as known by the accused) (the degree that the (vehicle) (aircraft) (vessel) had or had not been maintained as known by the accused) (weather conditions) (speed) (the accused’s physical condition) (and) (_________)).)
NOTE 7: Drunkenness or impairment. If drunkenness or impairment is alleged, give the instruction below. If impairment by a controlled substance is alleged, the military judge should examine paragraph 50, Part IV, MCM to ensure that the substance alleged is one prohibited. See NOTE 7 below.
(“Drunk”) (and) (“Impaired”) means any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties. (“Drunk” relates to intoxication by alcohol.) (“Impaired” relates to intoxication by a controlled substance.)
NOTE 8: Nature of the substance causing impairment. Article 112a(b) specifically prohibits certain controlled substances. It also incorporates the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971. The list of controlled substances in Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR 1308 et seq. Whether the substance alleged was among those covered by Article 112a is an interlocutory question for the military judge. To determine that issue, the military judge may take judicial notice that the alleged substance is a scheduled controlled substance. See US v. Gould, 536 F.2d 216 (8th Cir. 1976). Whether the substance is the one alleged or that it caused an impairment are questions of fact.
NOTE 9: Regulatory defects in handling of blood, breath or urine samples. When the evidence reflects “technical” deviations from governing regulations that establish procedures for collecting, transmitting, or analyzing samples, the following instruction may be appropriate. See US v. Pollard, 27 MJ 376 (CMA 1989). Blood, breath, or urinalysis test results should be excluded if there has been a substantial violation of regulations intended to assure reliability of the testing procedures. See US v. Strozier, 31 MJ 283 (CMA 1990).
There is evidence raising the issue whether the government strictly complied with all aspects of (Army Regulation 600-85) (__________) governing how (blood) (breath) (urine) samples are to be (collected) (transmitted) (and) (analyzed). In order to convict the accused, the evidence must establish the (blood) (breath) (urine) sample originated from the accused and (tested positive for the presence of (heroin) (cocaine) (__________)) (contained the alcohol concentration alleged) without adulteration by any intervening agent or cause. You may consider deviations from governing regulations, or any other discrepancy in the processing or handling of the accused’s (blood) (breath) (urine) sample, in determining if the evidence is sufficiently reliable to support a vote for conviction.
NOTE 10: Sufficiency of evidence when blood or breath alcohol levels alleged. When a violation based upon blood or breath alcohol concentration is alleged, the following instruction may be given:
If you are convinced beyond a reasonable doubt that the accused was (operating) (in actual physical control of) the (vehicle) (aircraft) (vessel) when the alcohol concentration in (his) (her) (blood) (breath) was equal to or greater than (0.08 grams) (___ grams) or more of alcohol per (100 milliliters of blood) (210 liters of breath)), as shown by chemical analysis, no proof of drunkenness or impairment is required.
NOTE 11: Injury and proximate and intervening cause. If “causing injury” is alleged, an instruction that the accused’s conduct was a proximate cause of the injury may be necessary. See Burrage v. US 571 US 204 (2014), US v. Lingenfelter, 30 MJ 302 (CMA 1990). An appropriately tailored instruction from Instruction 5-5, Causation, Intervening Cause, Contributory Negligence may be required.