This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
¶1 David Robert Brown appeals from a judgment convicting him of operating a motor vehicle while intoxicated (OWI). He claims the circuit court erred by giving the standard jury instruction that allowed the jury to infer that Brown was intoxicated based on his breath test result. We disagree and affirm.
¶2 At around 11:00 p.m. on December 23, 2014, Deputy Sandra Vick spotted a white van parked on the side of the road in Waukesha County. She stopped her squad car behind the van to investigate and observed Brown walk out of a ditch on the side of the road. Vick also saw an adult passenger and a child in the van. Vick approached Brown, and he told her that he was traveling back from a family reunion in Delafield. Although Vick did not immediately observe any visible signs of impairment, she smelled alcohol on Brown's breath. Following questioning, Brown admitted that he had two "Sam Adams" beers and "a shot" earlier that evening. Vick elected to administer three field sobriety tests— horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg-stand—"to make sure [Brown] was not too impaired to be driving."
¶3 At trial, Vick testified that Brown exhibited horizontal nystagmus prior to forty-five degrees and distinct and sustained nystagmus at maximum deviation, both signs of intoxication.
¶4 During the sobriety tests and while on the way to the station, Brown repeatedly stated he was a colonel in the Air Force and "asked if there was a way [to] work something out." Vick interpreted this as a request that he not be charged with OWI. After being told that was not an option, Brown was quiet until he arrived at the station whereupon he agreed to submit to a breath test. At the station, Brown changed his story about how much alcohol he had to "a couple shots of whiskey." The breath test was completed at 1:10 a.m. and showed a result of .11g/210L, above the legal limit of .08g/210L. See WIS. STAT. §§ 340.01(1v)(b), (46m)(a) & 346.63(1)(b). The State charged Brown with operating while intoxicated and operating with a prohibited alcohol concentration, both first offenses.
¶5 At trial, the State presented three witnesses, including Vick, and introduced the results of Brown's breath test.
¶6 Oehldrich prepared a report estimating Brown's alcohol concentration at 11:10 p.m.—the estimated time of driving per the police report. In doing so, Oehldrich asked Brown about his height, weight, age, what he had to drink, and when he consumed the alcohol. In response, Brown again changed his story on how much alcohol he had to drink. He told Oehldrich he consumed a "tall Canadian Club with ... club soda" at 10:00 p.m. and three 2-ounce shots at 10:20 p.m., 10:35 p.m., and 10:50 p.m. Based on this information and the State's breath test, Oehldrich estimated that Brown's blood alcohol concentration at 11:10 p.m. was .078g/210L.
¶7 Based on Oehldrich's testimony, Brown requested that the jury be instructed on the alcohol curve. He also argued that the part of the standard jury instruction informing the jury they could find intoxication based on the breath test alone was not relevant in light of Oehldrich's testimony on the alcohol curve.
The jury convicted Brown on both counts, though the PAC charge was dismissed by operation of law. Brown was sentenced and now appeals.
¶8 The circuit court is tasked with fully and fairly informing the jury of the applicable law.
¶9 A jury instruction creates a permissive presumption or inference if it allows, but does not require, the jury to find an elemental fact upon proof of some basic fact.
¶10 Such legally prescribed permissive inferences are generally acceptable; Brown does not suggest otherwise. Rather, Brown argues that its application in this case violated his constitutional due process rights. A defendant's due process rights have been violated by a permissive inference "only if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference."
¶11 An OWI conviction requires the State to prove two elements beyond a reasonable doubt: (1) that the defendant was operating a motor vehicle and (2) he or she was under the influence of an intoxicant at the time of driving.
¶12 Brown argues that—given Oehldrich's unrebutted blood alcohol curve testimony that his blood alcohol concentration was likely below the legal limit at precisely 11:10 p.m.—there is no rational connection between his breath test two hours later and his blood alcohol level at the time he was driving.
¶13 As a preliminary matter, Brown focuses on the wrong inferred elemental fact. Brown is appealing his conviction for operating while intoxicated; his charge and conviction for prohibited blood alcohol concentration was dismissed. The question then is whether there is a rational connection between the alcohol concentration reflected in his breath test and whether he was intoxicated while driving his vehicle—not Brown's actual level of blood alcohol concentration.
¶14 Seen in this light, the question is not even close. In layman's terms, the law merely allows a jury to conclude that a driver was intoxicated if the driver took a test within three hours of driving that showed a certain elevated blood alcohol level. It is difficult to see how such a permissive inference is irrational. It is assuredly more likely than not that intoxication can be inferred from an elevated blood alcohol level. See
¶15 This is true, by the way, even if the jury fully credited Oehldrich's testimony. Brown appears to suggest that a finding of intoxication would be impermissible had he been ever so slightly under the legal limit while driving. But the legislature has defined intoxication as being under the influence of an intoxicant (here, alcohol) "to a degree which renders him or her incapable of safely driving." WIS. STAT. § 346.63(1)(a). The jury instructions describe this as being "less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle." WIS JI—CRIMINAL 2669. It is perfectly rational for the legislature to conclude and the circuit court to instruct a permissive inference that a test within three hours of driving showing an elevated blood alcohol concentration is sufficient evidence from which a jury may infer intoxication—even if the driver's blood alcohol content at the time of driving was a touch below .08.
¶16 Moreover, the instruction only allows—but does not require—the inference. Giving the instruction permitted the jury to weigh the credibility of Oehldrich's conclusions. Oehldrich freely conceded that Brown would have reached the legal limit of .08 precisely two minutes after 11:10 p.m. (which was only an estimated time of driving), and that if any of Oehldrich's assumptions were inaccurate, Brown actually might have been over .08 when he was driving. In view of all the evidence, the jury could have rationally inferred from Brown's breath test showing .11 (which the jury was free to accept or reject as proven beyond a reasonable doubt) that Brown was intoxicated. So instructing the jury did not violate due process.
¶17 Brown also argues that the jury instruction violated WIS. STAT. § 903.03(2). In order to give an instruction creating a presumption or inference, § 903.03(2) specifies that a circuit court may give the instruction "only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt."
¶18 The State made the case at trial that Brown smelled of alcohol and failed all three sobriety tests. While he complains that the one-leg-stand and HGN tests were improperly administered, Vick testified that she based her opinion of intoxication on all three.
¶19 Accordingly, the circuit court's instruction that the jury could infer that Brown was intoxicated based on his breath test result did not violate due process or WIS. STAT. § 903.03(2). The jury instructions were a full, fair, and correct statement of the law.
By the Court.—Judgment affirmed.