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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 35789 SHANE MCKAY, ) ) Petitioner/Appellant, ) v. ) ) STATE OF IDAHO, ) ) Respondent/Respondent. ) ) ) Boise, December 2009 Term 2010 Opinion No. 9 Filed: January 29, 2010 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Hon. Renae J. Hoff, District Judge. The district court`s dismissal of the application for post conviction relief is vacated and the case is remanded for further proceedings. Nevin, Benjamin & McKay, LLP, Boise, for appellants. Dennis Benjamin argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica Lorello argued. ____________________________________ W. JONES, Justice I. NATURE OF THE CASE Shane McKay, the appellant, was convicted of vehicular manslaughter for striking and killing a motorcyclist while driving under the influence of alcohol. At trial, the jury instructions omitted an element requiring the state to prove that McKay`s intoxication was a significant cause of the death. McKay seeks review of the district court`s summary dismissal of his application for post-conviction relief. He alleges ineffective assistance of both trial and appellate counsel for failing to raise the omitted-element instructional issue. II. FACTUAL AND PROCEDURAL BACKGROUND Around midnight on the morning of October 5, 2003, McKay allegedly swerved in and out of his lane while driving his car through Nampa, Idaho, striking a motorcycle from behind and killing the driver, Ted Cox. A blood test later revealed that McKay had a blood-alcohol content (BAC) of 0.15.

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McKay`s defense at trial was that Cox was driving unnecessarily slowly and his brake light was not visible, and therefore that McKay would not have seen the motorcycle in the darkness regardless of whether he was driving while intoxicated. McKay was charged with vehicular manslaughter while driving under the influence of alcohol, which is defined as a death in which the operation of a motor vehicle is a significant cause contributing to the death because of the defendant`s operation of a vehicle while intoxicated. I.C.

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Idaho Law