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PAC – Burden of Proof

State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10

court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply

Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence, but the court of appeals concludes that the correct burden was indeed applied:

¶17      It is true the court used the term “greater weight of the evidence.” Both times it did so was in the context of discussing Kalscheur’s testimony. We acknowledge the use of this phrase is confusing. However, in context we understand the circuit court to be expressing its view that Kalscheur’s testimony was probative as required for admissibility under Wis. Stat. § 885.235(3) and persuasive on the issue of Steinke’s PAC. We also consider it relevant that the prosecutor argued that the evidence showed Steinke was guilty of both the OWI charge and the PAC charge beyond a reasonable doubt, and the court expressly referred to the “beyond a reasonable doubt” standard in finding Steinke not guilty of OWI.[5] It is not reasonable to read the record as showing the court did not understand this was the correct standard for the PAC charge as well.

Worth remembering: whether the circuit court applied the correct burden is a question of law, reviewed de novo, ¶15, citing Wolfe v. Wolfe, 2000 WI App 93, ¶14.

PAC – Sufficiency of Evidence

Steinke was arrested at a probation office, following which his blood was drawn, yielding a blood alcohol content of .24 along with an “elimination rate” used to estimate his BAC at a prior time. However, no one had seen him drive to the office and there was no direct evidence as to when he had stopped drinking: Steinke therefore argues that there was no way to know if his PAC exceeded the limit when he drove. The court of appeals rejects the argument, concluding that, for various reasons, it was reasonable to infer Steinke entered the office as soon as he arrived and drank nothing thereafter — thus anchoring the time and allowing for a conclusion he drove with a prohibited level of alcohol in his system, ¶¶18-25.

The standard of review typically determines the outcome: deferential, and the odds of reversal are vanishingly small; independent, and they increase. Or so we are told. The court begins its analysis with a nod toward a principle that isn’t always articulated, ¶18: “Steinke’s challenge to the sufficiency of the evidence on the PAC charge…, too, presents a question of law, which we review de novo. See State v. Booker, 2006 WI 79, ¶12.” But it is also true that the court in its independent review resolves competing inferences in favor of, not against, the judgment of guilt. So far, so good. On to the facts. Guilt turns on just when Steinke arrived at the probation office parking lot, because if it was an appreciable time before he went in, then he could well have been drinking up a storm in the parking lot; driving up his BAC without driving. And, remarkably, the circuit court apparently threw up its hands and said it couldn’t tell:

¶20      The circuit court here stated that Steinke could have arrived anytime between 9:00 a.m. and 1:30 p.m. We are uncertain of the court’s reasoning in finding Steinke guilty of the PAC charge, given this broad time frame. In particular, we are uncertain what the court believed the expert’s testimony established concerning Steinke’s PAC at any particular time before he was seen by Kaczmarek at the probation office shortly after 1:00 p.m. However, because our review is de novo, we conduct our own analysis of the testimony, bearing in mind that we are to draw all reasonable inferences from the evidence is favor of the determination of guilt.[6]

You can see clearly, then, how the nominally favorable independent-review regime works against the appellant in this instance: it allows the court of appeals simply to ignore the trier of fact’s assessment of the evidence. It’s not something that happens every day. The court of appeals might well be correct in its view that reasonable inferences support guilt, but drawing those inferences requires that the court turn a blind eye to demonstrable trier-of-fact confusion on the decisive factual issue. If that confusion doesn’t support reversal and new trial in the interest of justice, what would? True, Steinke doesn’t seem to have made that argument, but that wouldn’t prevent the court from granting that relief on its own, especially given its own express uncertainty about the trial court’s reasoning.

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