Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech. A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.
If, as happened here, the defendant’s blood “is taken with 3 hours of the time he operated a motor vehicle, a jury may conclude that the BAC results at the time of testing are proof of BAC at the time of operating, but the jury is not required to do so.” Slip op. ¶10 (emphasis supplied). This instruction “creates a permissive presumption, which places no burden of any kind on the defendant. See State v. Vick, 104 Wis. 2d 678, 694-95, 312 N.W.2d 489 (1981).” Id.
¶11 Here, the circuit court concluded the defense presented no evidence disputing the State’s proof, but WIS JI—CRIMINAL 2660A instructs that a jury “may find” an elemental fact (BAC of .08 or more at the time of operating) if the prosecutor proves a basic fact (BAC of .08 or more at the time of blood test). This leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof. Furthermore, although the jury heard Weber’s (state lab analyst) uncontroverted testimony concerning Van Ark’s BAC, a jury is not bound by the testimony of an expert, even if uncontroverted. See Krueger v. Tappan Co., 104 Wis. 2d 199, 203, 311 N.W.2d 219 (Ct. App. 1981). Accordingly, the court erred by taking the case from the jury.