PIK Your Poison: Can the District Court Change Statutory PIK Instructions?

Brooke Flucke, Staff Editor

State v. Zeiner, No. 122,682, (Kan. Aug. 26, 2022)

Issue: Can the state district court change pattern instructions (“PIK instructions”) that otherwise track statutory language, so the instructions conform to the case’s facts?

Answer:  Yes, a state district court may change PIK instructions if the case’s facts permit a change.

Facts:  A sheriff found Ty R. Zeiner asleep in his vehicle on the side of the road.  The vehicle’s lights and radio were on.  Zeiner failed the typical sobriety tests, had beer bottles in his vehicle, produced deficient breath tests, and had unusually slow mannerisms.  The State subsequently charged Zeiner with a DUI under Kan. Stat. Ann. § 8-1567(a)(3).  The statute defines driving under the influence as “operating or attempting to operate any vehicle within this state while: . . . under the influence of alcohol . . . .”[1] At trial, Zeiner requested that the court replace the word “operate” with the word “drive” in the jury instruction, but his request was denied.

The jury ultimately convicted Zeiner.  Although the Court of Appeals held the jury instruction was incorrect, it affirmed Zeiner’s conviction under the harmless error doctrine. The Kansas Supreme Court overturned the Court of Appeals and determined the error was not harmless.

Discussion:   Although the the PIK instruction reflected the statutory language, as stated, the instruction misrepresented Zeiner’s case and affected his substantive rights. When an appellate court finds that a lower court erred in instructing the jury, the appellate court must determine that the error was harmless to affirm the ruling.  For an issue to be “harmless,” the court must find that the error did not affect the defendant’s substantive rights or change the trial’s outcome.  The PIK instructions are used to promote accuracy and consistency among jury instructions.  When defendants object to instructions, courts consider whether the instruction “properly and fairly stated the law as applied to the facts and could not have reasonably mislead the jury.”[2]    While the PIK instructions tracked the statutory language by using the term “operate,” the Supreme Court held that the PIKs did not provide the jury with a precise definition of “operate” as it pertained to Zeiner’s rights.  The Court could not confidently conclude the jury had (1) convicted Zeiner without believing that he drove his vehicle while intoxicated or (2) believed that Zeiner was not “operating” his vehicle illegally.  Because this incorrect definition in the PIK instructions affected Zeiner’s substantive rights, the District Court did not commit a harmless error when it denied Zeiner’s request to change the PIK instructions.  Accordingly, the Kansas Supreme Court reversed the Court of Appeals and remanded the case for a new trial with proper jury instructions.

Key Authorities: Kan. Stat. Ann. § 8-1567(a)(3) (2021); State v. Butler, 416 P.3d 116, 128 (Kan. 2018); State v. Plummer, 283 P.3d 202, 208 (Kan. 2012) (explaining the standard for a harmless error).

[1] Kan. Stat. Ann. § 8-1567(a)(3) (2021) (emphasis added).

[2] State v. Butler, 416 P.3d 116 (2018) (explaining the court’s review of a party’s objection to jury instructions).

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