The phrase "under the influence" is repeated daily by prosecutors, lawyers and criminal defense lawyers. It's one of the five Driving Under the Influence crimes applicable in Kentucky. Suspected impaired drivers can be charged with driving with a prohibited blood or breath alcohol content (0.8 and above), driving under the influence of illegal or prescribed drugs, driving under the influence of alcohol and drugs, under-21 impaired driving and driving under the influence of alcohol.

The driving under the influence of alcohol charge goes back to the days before machines were used to measure breath-alcohol content. It is the original, old-school DUI charge. It is also used today when a suspected impaired driver refuses to submit to breath or blood testing.

Lawyers and Judges use it so often we may become desensitized to it, but jurors aren't. I almost learned this the hard way. Twice, while deliberating, a local jury asked the Judge to define the phrase "under the influence." My client refused all chemical testing so there was no magic number for the jury to consider.

The prosecutor tried to demonstrate my client was under the influence by claiming he weaved while driving and performed poorly on divided attention testing, or as some lawyers call them: "Roadside Gymnastics." I countered by pointing out my client was stopped for speeding, not something law enforcement is taught is a DUI driving clue. He also successfully completed the Roadside Olympics by demonstrating one clue each on the one-leg stand and "I Walk the Line" exercises. I also walked the arresting officer through his DUI Detection training to demonstrate my client exhibited few traits of "under the influence" driving.

Still, despite my efforts and those of the prosecutor, the jury wanted a legal definition of "under the influence." After the first question, the Judge appropriately and tactfully advised the jury it had to decide the case based on the jury instructions. That didn't do it because a few minutes later, the jury asked the same question. This time the Judge brought the jury back into the courtroom and, again, tactfully and appropriately explained the Kentucky Supreme Court ruled that juries cannot be supplied with a definition of "under the influence." Our top court thinks the meaning of the phrase is so evident it doesn't require explanation.

Finally, after wrestling with the instructions for a few more minutes, the jury returned the two-word verdict my client wanted to hear: Not Guilty. My client left the courthouse a happy man. I left the courthouse determined to more extensively explore prospective jurors on their definitions of "under the influence."