Article 113 — Drunken or reckless operation of a vehicle, aircraft, or vessel

Part IV · Punitive Articles

Article 113. Drunken or reckless operation of a vehicle, aircraft, or vessel · MCM ¶ 51

2024 Manual for Courts-Martial, United States

(a) Text of statute.

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)), or

(2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct. (b)(1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person’s blood or breath is as follows:

(A) In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of—

(i) the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or

(ii) the blood alcohol content limit specified in paragraph (3).

(B) In the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe. (2) In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respective State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation.

(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person’s blood is 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person’s breath is 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis. The Secretary may by regulation prescribe limits that are lower than the limits specified in the preceding sentence, if such lower limits are based on scientific developments, as reflected in Federal law of general applicability.

(4) In this subsection:

(A) The term “blood alcohol content limit” means the amount of alcohol concentration in a person’s blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited.

(B) The term “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term “State” includes each of those jurisdictions.

(b) Elements.

(1) That the accused was operating or in physical control of a vehicle, aircraft, or vessel; and

(2) That while operating or in physical control of a vehicle, aircraft, or vessel, the accused—

(a) did so in a wanton or reckless manner; or

(b) was drunk or impaired; or

(c) the alcohol concentration in the accused’s blood or breath equaled or exceeded the applicable limit under Article 113(b).

Practice Note

[Note: Add the following if applicable]

(3) That the accused thereby caused the vehicle, aircraft, or vessel to injure a person.

(1) Vehicle. See 1 U.S.C. § 4.

(2) Vessel. See 1 U.S.C. § 3.

(3) Aircraft. See 18 U.S.C. § 31(a)(1).

(4) Operates. Operating a vehicle, aircraft, or vessel includes not only driving or guiding a vehicle, aircraft, or vessel while it is in motion, either in person or through the agency of another, but also setting of its motive power in action or the manipulation of its controls so as to cause the particular vehicle, aircraft, or vessel to move.

(5) Physical control and actual physical control. These terms as used in the statute are synonymous. They describe the present capability and power to dominate, direct, or regulate the vehicle, vessel, or aircraft, either in person or through the agency of another, regardless of whether such vehicle, aircraft, or vessel is operated. For example, the intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition but with the engine not turned on could be deemed in actual physical control of that vehicle. However, the person asleep in the back seat with the keys in his or her pocket would not be deemed in actual physical control. Physical control necessarily encompasses operation.

(6) Drunk or impaired. Drunk and impaired mean any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties. The term drunk is used in relation to intoxication by alcohol. The term impaired is used in relation to intoxication by a substance described in Article 112(a).

(7) Reckless. The operation or physical control of a vehicle, vessel, or aircraft is reckless when it exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. Recklessness is not determined solely by reason of the happening of an injury, or the invasion of the rights of another, nor by proof alone of excessive speed or erratic operation, but all these factors may be admissible and relevant as bearing upon the ultimate question: whether, under all the circumstances, the accused’s manner of operation or physical control of the vehicle, vessel, or aircraft was of that heedless nature which made it actually or imminently dangerous to the occupants, or to the rights or safety of others. It is operating or physically controlling a vehicle, vessel, or aircraft with such a high degree of negligence that if death were caused, the accused would have committed involuntary manslaughter, at least. The nature of the conditions in which the vehicle, vessel, or aircraft is operated or controlled, the time of day or night, the proximity and number of other vehicles, vessels, or aircraft and the condition of the vehicle, vessel, or aircraft, are often matters of importance in the proof of an offense charged under this article and, where they are of importance, may properly be alleged.

(8) Wanton. Wanton includes “reckless,” but in describing the operation or physical control of a vehicle, vessel, or aircraft, wanton may, in a proper case, connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

(9) Causation. The accused’s drunken or reckless driving must be a proximate cause of injury for the accused to be guilty of drunken or reckless driving resulting in personal injury. To be proximate, the accused’s actions need not be the sole cause of the injury, nor must they be the immediate cause of the injury, that is, the latest in time and space preceding the injury. A contributing cause is deemed proximate only if it plays a material role in the victim’s injury.

(10) Separate offenses. While the same course of conduct may constitute violations of both paragraphs (a)(1) and (2) of Article 113, e.g., both drunken and reckless operation or physical control, this article proscribes the conduct described in both paragraphs (a)(1) and (2) as separate offenses, which may be charged separately. However, as recklessness is a relative matter, evidence of all the surrounding circumstances that made the operation dangerous, whether alleged or not, may be admissible. Thus, on a charge of reckless driving, for example, evidence of drunkenness might be admissible as establishing one aspect of the recklessness, and evidence that the vehicle exceeded a safe speed, at a relevant prior point and time, might be admissible as corroborating other evidence of the specific recklessness charged. Similarly, on a charge of drunken driving, relevant evidence of recklessness might have probative value as corroborating other proof of drunkenness.

(d) Maximum punishment.

(1) Resulting in personal injury. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.

(2) No personal injury involved. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

(e) Sample specification. In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____, 20 __, (in the motor pool area) (near the Officers’ Club) (at the intersection of __________ and __________) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) (_____)] [an aircraft, to wit: (an AH- 64 helicopter) (an F-14A fighter) (a KC-135 tanker) (_____)] [a vessel, to wit: (the aircraft carrier USS __________) (the Coast Guard Cutter __________) (__________)], [while drunk] [while impaired by __________] [while the alcohol concentration in (his) (her) (blood or breath) equaled or exceeded the applicable limit under subsection (b) of the text of the statute in paragraph 51 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) (injure __________)].

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

3a-51-1DRUNKEN OR RECKLESS OPERATION OF A VEHICLE, AIRCRAFT, OR VESSEL

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

(1) If resulting in personal injury: DD, TF, 18 months, E-1. (Category 2)

(2) No personal injury: BCD, TF, 6 months, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did (at/on board--location), on or about __________, (in the motor pool area) (near the Officer’s Club) (at the intersection of __________ and __________) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) (__________)] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (__________)] [a vessel, to wit: (the aircraft carrier USS __________) (the Coast Guard Cutter __________) (__________)], [while drunk] [while impaired by __________] [while the alcohol concentration in (his) (her) (blood or breath) equaled or exceeded the applicable limit under subsection (b) of the text of the statute in paragraph 51 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) injure __________)].

Elements

(1) That (state the time and place alleged), the accused was (operating) (in physical control of) a (vehicle) (aircraft) (vessel), to wit: __________; (and)

(2) That the accused (operated) (physically controlled) the (vehicle) (aircraft) (vessel)

(a) in a (reckless) (and) (wanton) manner by (state the alleged manner);

(b) while (drunk) (and) (impaired by (state the drug alleged));

(c) when the alcohol concentration in (his) (her) (blood) (breath) was equal to or greater than (0.08 grams) (___ grams) or more of alcohol per (100 milliliters of blood) (210 liters of breath)), as shown by chemical analysis; [and]

NOTE 2. Injury alleged. If an injury is alleged, add the following element:

[(3)] That the accused thereby caused the (vehicle) (aircraft) (vessel) to (strike and) injure (state the name of the alleged victim).

Definitions & other instructions

NOTE 3. Vehicle, aircraft, and vessel defined. The following definitions should be given, as applicable.

(“Vehicle” includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.)

(“Aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.)

(“Vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)

NOTE 4. Operating. If the accused is charged with operating a vessel, aircraft, or vehicle, give the first instruction below. The second instruction may be helpful.

“Operating” includes not only driving or guiding a (vehicle) (aircraft) (vessel) while in motion, either in person or through the agency of another, but also the setting of its motive power in action or the manipulation of its controls so as to cause the particular (vehicle) (aircraft) (vessel) to move.

(Thus, one may operate a (vehicle) (aircraft) (vessel) by pushing it, setting its motive power in action by starting the engine or otherwise, or releasing the parking brake of a vehicle on a hill so the vehicle rolls downhill.)

NOTE 5. Controlling. If the specification alleges “control” of the vehicle, aircraft, or vessel, the instruction that follows should be given. The military judge should be alert to situations where the ability to control, although present, is so remote that extending criminal culpability to such conduct is outside the intent of the statute. The literal language of the instruction that follows is so broad that it seems to cover a person with the authority and practical means to direct the steering or movements of a vessel, vehicle, or aircraft, even where no attempt at control was made and no causal connection existed between the person’s consumption of alcohol or drugs and the operation of the vessel, vehicle, or aircraft. For example, a ship’s captain drunk in his cabin who made no effort to direct the ship’s course, despite his authority and capability (via intercom) to do so, seems to be covered by the “control” definition taken from the Manual. Additionally, a person in the passenger seat, even with the engine turned on or capable of starting the engine, is not in “control” of the vehicle. See US v. Scheurer, 62 MJ 100, 110 (CAAF 2005); US v. McCullough, 2024 CCA Lexis 198 (ACCA 2024). In such a situation, tailoring the example (taken directly from the MCM) may be necessary.

(“Physically controlling”) (“In actual physical control”) mean(s) that the accused had the present capability and power to dominate, direct, or regulate the (vehicle) (aircraft) (vessel), either in person or through the agency of another, regardless of whether such (vehicle) (aircraft) (vessel) was operated.

(For example, an intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition, but with the engine not turned on, could be deemed in actual physical control of that vehicle. (However, a person asleep in the back seat with the keys in his or her pocket would not be deemed in actual physical control.))

NOTE 6. Reckless or wanton. If it is alleged that the accused operated or physically controlled the vehicle, aircraft, or vessel in a reckless or wanton manner, give the instructions below, as applicable.

“Reckless” means a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care; that is, (an act) (or failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the safety of others which a reasonably careful person would have used under the same or similar circumstances. “Recklessness,” on the other hand, is a negligent (act) (failure to act) combined with a culpable disregard for the foreseeable consequences to others. “Reckless” means that the accused’s manner of operation or control of the (vehicle) (aircraft) (vessel) was, under all the circumstances, of such a heedless nature that made it actually or imminently dangerous to the occupant(s) or to the rights or safety of (others) (another). (Recklessness is not determined solely by reason of the happening of an injury, or the invasion of the rights of another, nor by proof alone of excessive speed or erratic operation, although all these factors may be relevant as bearing upon the question of recklessness.)

“Wanton” includes reckless, but in describing the operation or physical control of a (vehicle) (vessel) (aircraft), wanton may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

(In deciding whether the accused (operated) (physically controlled) the (vehicle) (aircraft) (vessel) in a (reckless) (wanton) manner, you must consider all the relevant evidence, (including, but not limited to: the (condition of the surface on which the vehicle was operated) (time of day or night) (traffic conditions) (condition of the (vehicle) (aircraft) (vessel) as known by the accused) (the degree that the (vehicle) (aircraft) (vessel) had or had not been maintained as known by the accused) (weather conditions) (speed) (the accused’s physical condition) (and) (_________)).)

NOTE 7. Drunkenness or impairment. If drunkenness or impairment is alleged, give the instruction below. If impairment by a controlled substance is alleged, the military judge should examine paragraph 50, Part IV, MCM to ensure that the substance alleged is one prohibited. See NOTE 7 below.

(“Drunk”) (and) (“Impaired”) means any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties. (“Drunk” relates to intoxication by alcohol.) (“Impaired” relates to intoxication by a controlled substance.)

NOTE 8. Nature of the substance causing impairment. Article 112a(b) specifically prohibits certain controlled substances. It also incorporates the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC section 801-971. The list of controlled substances in Schedules I through V is updated and republished annually in the Code of Federal Regulations. See 21 CFR 1308 et seq. Whether the substance alleged was among those covered by Article 112a is an interlocutory question for the military judge. To determine that issue, the military judge may take judicial notice that the alleged substance is a scheduled controlled substance. See US v. Gould, 536 F.2d 216 (8th Cir. 1976). Whether the substance is the one alleged or that it caused an impairment are questions of fact.

NOTE 9. Regulatory defects in handling of blood, breath or urine samples. When the evidence reflects “technical” deviations from governing regulations that establish procedures for collecting, transmitting, or analyzing samples, the following instruction may be appropriate. See US v. Pollard, 27 MJ 376 (CMA 1989). Blood, breath, or urinalysis test results should be excluded if there has been a substantial violation of regulations intended to assure reliability of the testing procedures. See US v. Strozier, 31 MJ 283 (CMA 1990).

There is evidence raising the issue whether the government strictly complied with all aspects of (Army Regulation 600-85) (__________) governing how (blood) (breath) (urine) samples are to be (collected) (transmitted) (and) (analyzed). In order to convict the accused, the evidence must establish the (blood) (breath) (urine) sample originated from the accused and (tested positive for the presence of (heroin) (cocaine) (__________)) (contained the alcohol concentration alleged) without adulteration by any intervening agent or cause. You may consider deviations from governing regulations, or any other discrepancy in the processing or handling of the accused’s (blood) (breath) (urine) sample, in determining if the evidence is sufficiently reliable to support a vote for conviction.

NOTE 10. Sufficiency of evidence when blood or breath alcohol levels alleged. When a violation based upon blood or breath alcohol concentration is alleged, the following instruction may be given:

If you are convinced beyond a reasonable doubt that the accused was (operating) (in actual physical control of) the (vehicle) (aircraft) (vessel) when the alcohol concentration in (his) (her) (blood) (breath) was equal to or greater than (0.08 grams) (___ grams) or more of alcohol per (100 milliliters of blood) (210 liters of breath)), as shown by chemical analysis, no proof of drunkenness or impairment is required.

NOTE 11. Injury and proximate and intervening cause. If “causing injury” is alleged, an instruction that the accused’s conduct was a proximate cause of the injury may be necessary. See Burrage v. US 571 US 204 (2014), US v. Lingenfelter, 30 MJ 302 (CMA 1990). An appropriately tailored instruction from Instruction 5-5, Causation, Intervening Cause, Contributory Negligence may be required.

Source: Instruction 3a-51-1 · view original on jagcnet.army.mil