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City of Milwaukee v. Bell7/11/2000
d that the trial court properly exercised its discretion in instructing the jury. While the facts in Vick are similar to those present here, they are different in one crucial manner. Vick, too, based his defense on the "blood alcohol curve," and contending that while his test results fell within the prohibited zone, after applying the scientific principles behind the "blood alcohol curve," his alcohol concentration was not over the limit at the time of his operation. In Vick, however, the trial court instructed the jury that they could conclude on the basis of the test results alone that Vick was guilty. See Vick, 104 Wis. 2d at 685-86. Thus, unlike Bell's trial, the jury was not instructed that the BAC results could be used to infer that the results when he was driving would be elevated.
. In affirming the verdict in Vick, the supreme court determined that the trial court's attenuated instruction was merely a permissive presumption which was not unconstitutional because the state had produced evidence to support a rational connection between the presumption and the ultimate fact. See id. at 694-99. Like Vick, here the City submitted other evidence to support its charge that Bell was operating a motor vehicle with a prohibited alcohol level which this court has already concluded was admissible. Thus, had the trial court given the same jury instruction as was given in Vick, the requirement in Vick that the City prove a rational connection between the presumption and the ultimate fact would have been met. Moreover, here the trial court's instruction did not contain the anomaly present in Vick. The trial court instructed the jury that the test results could only be used to infer that Bell's test results were elevated at the time of the offense.
If you are satisfied to a reasonable certainty by evidence which is clear, satisfactory, and convincing that there was .10 grams or more of alcohol in 210 liters of the defendant's breath at the time the test was taken, you may find from that fact alone that the defendant had a prohibited alcohol concentration at the time of the alleged operating, but you are not required to do so. (Emphasis added.)
Further, here the trial court gave a jury instruction favorable to the defense. The trial court instructed the jury that it could utilize the blood alcohol curve in its deliberations.
Evidence has also been received as to how the body absorbs and eliminates alcohol. You may consider the evidence regarding the analysis of the breath sample and evidence of how the body absorbs and eliminates alcohol along with all the other evidence in the case, giving it just such weight as you determine it is entitled to receive.
. Consequently, this court is satisfied that the trial court properly exercised its discretion with regard to the jury instructions and the trial court's refusal to modify Wis JI-Criminal 2668 did not constitute clear error. Accordingly, the judgment of the trial court is affirmed.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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