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Johnson v. State2/22/1996
l & C. Mueller, Federal Evidence § 65 (1977). In Casper Iron we further said:
The general term, burden of proof, identifies two separate legal doctrines: the burden of persuasion; and the burden of production, also termed the burden of producing evidence or the burden of going forward with the evidence. Louisell & Mueller, supra, § 66. The burden of persuasion is attached to the party who "runs the risk of nonpersuasion." Id. During a trial, this means if the "party with the burden of persuasion has not sustained it by a fair preponderance of the evidence — if the evidence is in equipoise or the opposing party's preponderates — the party with the burden must fail." Id. The burden of producing evidence is "the obligation of the party to present at the appropriate time . . . evidence on the issue involved of sufficient substance to permit the fact finder to act upon it." Id. The burden of producing evidence shifts during the presentation of evidence. Id. The burden of persuasion, which generally does not shift unless by the operation of a legal presumption, becomes operative only after all the evidence is submitted. Id.
Casper Iron, 845 P.2d at 393.
In this case the Division had the burden of proof of intoxication. Once the Division met its burden by producing evidence of intoxication, the burden of producing evidence to the contrary shifted to Appellants. The Division still ran the risk of nonpersuasion on the issue of intoxication. There was no improper shifting of the burden of proof in this case.
6. SCOPE OF EMPLOYMENT, CULPABLE NEGLIGENCE
Because we have sustained the hearing examiner's finding that Johnson's injury was caused by his intoxication, we need not consider the issues of whether Johnson's death arose out of and in the course of his employment or whether Johnson's death was caused by his culpable negligence.
CONCLUSION
We hold that the hearing examiner's decision that Johnson's injury was caused by his intoxication was supported by substantial evidence.
Affirmed.
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