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IN THE COURT OF APPEALS OF IOWA No. 6-563 / 05-1864 Filed August 23, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. KENNETH FRANCIS ORR, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Randall J. Nigg, District Associate Judge.

Defendant appeals his conviction for operating while intoxicated, third offense. AFFIRMED.

Jon M. Kinnamon, Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Fred H. McCaw, County Attorney, and Michael J. Whalen, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Miller, J., and Nelson, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

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NELSON, S.J.

I.

Background Facts & Proceedings

On the afternoon of November 14, 2004, deputy sheriff Dave Riniker stopped a vehicle that was exceeding the speed limit. Deputy Riniker suspected the driver, Kenneth Orr, had been drinking. 1 Orr would not track deputy Riniker's finger with his eyes, which prevented the deputy from applying the horizontal gaze nystagmus (HGN) test. Orr stated he had back surgery the previous

month, and was on new medication. Due to Orr's physical condition, deputy Riniker did not require him to perform standard field sobriety tests. The deputy asked Orr to spell the words "Dubuque" and "Mississippi," and Orr failed to spell "Mississippi" correctly. Orr failed a finger dexterity test, and was unable to recite the alphabet from E to P. After a preliminary breath test, deputy Riniker arrested Orr and took him to the Dubuque Law Enforcement Center. Orr agreed to a breath test. The results of the breath test showed an alcohol level of .123. Orr was charged with

operating while intoxicated or drugged (OWI), third offense, in violation of Iowa Code sections 321J.2(1)(a), (b), and 321J.2(2)(c) (2003). The case was tried to a jury, which found Orr guilty of OWI. In a separate proceeding, Orr was found to have two previous convictions for OWI. On his current charge of OWI, third offense, he was sentenced to a term of imprisonment not to exceed five years. Orr appeals.

1

At the time of the stop, Orr presented a Wisconsin driver's license in the name of Michael Orr. It was later determined that defendant was actually Kenneth Orr.

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II.

Jury Instructions

Orr objected to Jury Instruction No. 9, which provided the jury could find defendant guilty if he operated a motor vehicle while (a) under the influence of alcohol, or (b) under the influence or drugs, or (c) under the influence of a combination of alcohol and drugs, or (d) had an alcohol concentration of .08 or more. Orr argued there was insufficient evidence to show that he was driving while under the influence of drugs, or a combination of alcohol and drugs. He submitted a proposed instruction that referred only to driving while intoxicated or with an alcohol concentration of .08 or more. The district court denied Orr's objections. The court determined: The Court did decide on offering the jury the four theories. I believe the record is sufficient to submit under the influence of drugs or combination of drugs and alcohol based primarily on the testimony that [the prosecutor]

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