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Blood-alcohol curve defense didn’t require modification of standard jury instruction on prima facie effect of blood alcohol test results

Little Chute Village Municipal Court v. Dennis M. Falkosky, 2015AP770, District 3, 9/22/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The trial court didn’t err by refusing to modify the standard OWI jury instruction, Wis. J.I.—Criminal 2668, by taking out language giving blood alcohol test results prima facie effect as to the defendant’s BAC at the time of driving and replacing the language with the instruction addressing the blood alcohol curve, Wis. J.I.—Criminal 234.

At his trial on OWI and PAC charges, Falkosky laid a foundation for a blood alcohol curve defense. Having laid the foundation for the defense, he asked for the prima facie effect (or “permissive presumption”) language in Wis. J.I.—Criminal 2668 to be removed and replaced with Wis. J.I.—Criminal 234. (¶8). In support of this request he cited the Jury Instruction Committee’s suggestion that when there is “a problem with the ‘blood alcohol curve’” it is preferable to treat blood alcohol test results simply as relevant evidence, rather giving the evidence prima facie effect under § 885.235(1g)(c). See Wis. J.I.—Criminal 2600. (¶13). The trial court declined to delete anything from Wis. J.I.—Criminal 2668, but did give Wis. J.I.—Criminal 234 in its entirety. (¶8).

The court of appeals rejects Falkosky’s argument that the permissive presumption was improperly applied in his case because, when he laid the foundation for an alcohol curve argument, the rational connection between the basic fact (that Falkosky had a prohibited alcohol concentration at the time of testing) and the presumed fact (that Falkosky was driving with a prohibited alcohol concentration) was lost.

¶12     A permissive presumption allows, but does not require, a jury to infer an elemental fact from proof of a basic fact and does not place a burden on the defendant. State v. Vick, 104 Wis. 2d 678, 694, 312 N.W.2d 489 (1981). Because a permissive presumption “leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof,” its use is improper “only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” Id. at 695 (quoting County Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 (1979)). The test for determining whether a “rational connection” exists between the basic fact and the elemental fact to be inferred is “whether it can be said with a substantial assurance that the latter is ‘more likely than not to flow from the former.’” Id. (quoting Allen, 442 U.S. at 165).

The Jury Instruction Committee’s comments (quoted in ¶13) make the same point and also cite Vick, so the Committee isn’t really saying the permissive presumption language should always be removed whenever a blood alcohol curve defense has been raised, only that might be “preferable.” The ultimate question is whether the presumed fact that a defendant was operating with a prohibited alcohol concentration “more likely than not flow[s] from” the proven fact that he exceeded the maximum permissible blood alcohol concentration at the time of testing. Vick, 104 Wis. 2d at 696. This is determined by the entirety of the evidence presented at trial. Id. at 695. (¶14).

In this case, having reviewed the entirety of the evidence, the court of appeals concludes a jury could reasonably infer that, more likely than not, if Falkosky had a prohibited alcohol concentration at the time of testing, he was operating his vehicle with a prohibited alcohol concentration when he was stopped. (¶15). Thus, “[w]hile not recommended, under the facts of this case, the circuit court’s decision to include the permissive presumption language from Wis. J.I.—Criminal 2668, along with Wis. J.I.—Criminal 234, in its instructions to the jury was not improper and not an erroneous exercise of its discretion.” (¶17).

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