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Instructing jury on permissive presumption of OWI was A-ok

County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs

Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.

The accident occurred at 12:46 p.m., and the deputy arrived at 2:40 p.m.  The decision doesn’t say when Woyak’s blood was drawn, but the jury was asked to make a finding as to whether it was performed within 3 hours of driving and presumably did. The point is, Woyak testified that he drank only 1 12-ounce can of beer before driving and other beer and alcohol after the accident as he stood outside the car trying to figure out what to do.  He objected to the use of the permissive presumption in Wis JI–Criminal 2668 because it would permit the jury to find that he was intoxicated even if he consumed all of the alcohol after the accident.

The court of appeals noted that the instruction did not require the jury to find that Woyak was driving while intoxicated if his test was taken within 3 hours. The jury was simply permitted to do so. See State v. Vick, 104 Wis. 2d 678, 694, 312 N.W.2d 489 (1981). It could have believed Woyak’s testimony and rejected the permissive presumption–but it didn’t.

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