You have found the defendant, [name], guilty of driving while intoxicated with a [blood/breath/urine] alcohol concentration level of 0.15 or more. The state has accused the defendant of being in possession of an open container of alcohol.

The defendant has pleaded that this accusation is “not true.”

The range of punishments from which you must assess the defendant’s punish-ment depends on whether you find the state has proved the open con-tainer accusation.

Relevant Statutes—Punishment If Accusation of Open Container “Not True”

If the state does not prove the accusation of an open container is true, this offense is punishable by—

1. a term of confinement in the county jail for no less than seventy-two hours and no more than one year, or
2. a term of confinement in the county jail for no less than seventy-two hours and no more than one year and a fine of no more than $4,000.

Relevant Statutes—Punishment If Accusation of Open Container Proved “True”

If the state proves the accusation of an open container is true, this offense is punishable by—

1. a term of confinement in the county jail for no less than six days and no more than one year, or
2. a term of confinement in the county jail for no less than six days and no more than one year and a fine of no more than $4,000.

Definitions

Open Container

“Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

Alcoholic Beverage

“Alcoholic beverage” means alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted.

Burden of Proof

The state must prove, beyond a reasonable doubt, the open container accusation.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, two elements of its accusation of an open container. The elements are that—

1. the defendant had an open container of an alcoholic beverage in his immediate possession, and
2. the defendant did this at the time of driving while intoxicated with a [blood/breath/urine] alcohol concentration level of 0.15 or more.

You must all agree on elements 1 and 2 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the open container accusation is “not true.” In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defen-dant for no less than seventy-two hours and no more than one year, or
2. the term of confinement in the county jail to be imposed on the defen-dant for no less than seventy-two hours and no more than one year and a fine of no more than $4,000.

If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must find the open container accusation is “true.” In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defen-dant for no less than six days and no more than one year, or
2. the term of confinement in the county jail to be imposed on the defen-dant for no less than six days and no more than one year and a fine of no more than $4,000.

VERDICT—ACCUSATION OF OPEN CONTAINER “NOT TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of an open container has not been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson

VERDICT—ACCUSATION OF OPEN CONTAINER “TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of an open container has been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson