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STATE v. ANDRUS

No. 17968.

800 P.2d 107 (1990)

118 Idaho 711

STATE of Idaho, Plaintiff-Respondent, v. Dave B. ANDRUS, Defendant-Appellant.

Court of Appeals of Idaho.

Rehearing Denied August 20, 1990.

Attorney(s) appearing for the Case

Randy Stoker, Twin Falls, for defendant-appellant.

Jim Jones, Atty. Gen. and Jack B. Haycock, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent. Haycock argued.

SUBSTITUTE OPINION

The Court's prior opinion, dated February 26, 1990, is hereby withdrawn.

McKEE, Judge, Pro Tem.

Dave Andrus was charged with driving under the influence of alcohol, tried before a jury in magistrate court, and convicted. He appealed to the district court, where the judgment of conviction was affirmed. He now appeals to this court. We conclude that the jury was incorrectly instructed and remand for new trial.

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