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Alcohol curve defense didn’t preclude jury instruction on BAC presumption

State v. David Robert Brown, 2016AP83-CR, 12/14/2016, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

David Brown was arrested for OWI; the breathalyzer that he took about two hours later showed a .11 BAC. At trial he adduced expert testimony that, given what Brown told the expert he had drunk and when, his BAC would have been .078, just below the legal limit, at the time he was driving. He objects on due process grounds to the court’s instructing the jury, in accord with Wis JI-Criminal 2669, that it could find he was driving under the influence on the basis of the BAC reading alone.

This instruction is a “permissive presumption.” That is, it permits, but does not require, the jury to infer an “elemental fact” (here intoxication) from a “basic fact” (the breath test result). Due process forbids such presumptions if, “under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.” (¶10 (citing State v. Vick, 104 Wis. 2d 678, 693, 312 N.W.2d 489 (1981))). Brown argues that his expert’s testimony severs the logical connection between his BAC at 1:10 a.m. and his intoxication at 11:00 p.m. The court disagrees:

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.

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.


Brown also argues that the instruction was prohibited by Wis. Stat. § 903.03(2), which allows presumptions “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.” The court recites the evidence and concludes that, viewed in a light favorable to the verdict, it satisfies this standard. (¶¶18-19).

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