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OWI – Breathalyzer Results, Jury Instructions

County of Ozaukee v. David W. Berend, 2011AP291, District 2, 8/24/11

court of appeals decision (1-judge, not for publication); for Berend: Walter Arthur Piel, Jr.; case activity

Breathalyzer test results are admissible (and presumptively accurate) in OWI and PAC proceedings if “the sample was taken within 3 hours after the event to be proved,” § 885.235(1g). Berend’s test was administered at 11:07, and he said he’d stopped drinking at 8:00. Therefore, at his request, the trial court instructed the jury that the presumption on testing accuracy was triggered by finding that the test was taken within 3 hours of operation. Berend argues on appeal that the presumption-of-accuracy instruction shouldn’t have been given at all, because there was insufficient evidence to support the presumption’s trigger, that the test occurred within 3 hours. The court rejects the argument, holding in effect that this factual issue was a legitimate jury question:

¶6        …  Berend misses the point of the circuit court’s amended jury instructions.  The circuit court recognized that there was a factual question as to when Berend stopped driving, so the court instructed the jury that it could only rely on the breathalyzer test results if it found that Berend drove within three hours of taking the test.  Berend stated that he stopped drinking at 8:00 p.m.  The test was taken at 11:07 p.m.  Deputy Frame testified that he responded to a call about a truck stuck in the mud at approximately 10:00 p.m.  It was entirely reasonable for the jury to find that Berend was driving after 8:07 p.m.  As we will sustain a jury verdict if there is any credible evidence to support it, we affirm Berend’s conviction.  See Morden v. Continental AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659.

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