SHEPARD, Chief Justice.
Appellant David W. Smith has appealed his conviction for driving while intoxicated, a class D felony. Police officers encountered him at 12:55 a.m. passed out in his car, partially on the roadway, with the motor running, the transmission in reverse, and Smith's foot on the brake. He later tested.18% blood alcohol content.
The Court of Appeals reversed, citing instructions that told the jury:
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