 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Wetzel11/27/1989
create an impermissible conclusive presumption of guilt. The Honolulu Prosecutor has submitted a written opinion which states that this measure is constitutionally acceptable.
Sen. Stand. Comm. Rep. No. 999, in 1983 Senate Journal, at 1478.
Thus, although the old HRS § 291-5 used the words "shall be presumed" with respect to the effect of 0.10 percent BAC, HRS § 291-5(a) provides that 0.10 percent BAC "shall be competent evidence." "Competent evidence" creates neither a conclusive presumption nor a rebuttable presumption.
HRS § 291-5(a) provides that a BAC of 0.10 percent or more, within three hours after an alleged DUI offense, shall be competent evidence that the person was driving under the influence of intoxicating liquor at the time of the alleged offense. The legislature has created this statutory inference. The use of such an inference is not unconstitutional.
In State v. Arakaki,7 Haw. App. 48, 744 P.2d 783 (1987), we stated:
Where proof of elements of a crime cannot be shown or is difficult to show by direct evidence, "legislatures often provide for the inference of such elements of a crime based upon the
existence of other proven facts." State v. Brighter, 61 Haw. 99, 103, 595 P.2d 1072, 1075 (1979).
Arakaki, 7 Haw. App. at , 744 P.2d at 785 (footnote omitted). We stated, however, that "the inference must not have 'impermissible burden-shifting effect.'" Id. at , 744 P.2d at 786 (quoting State v. Bumanglag, 63 Haw. 596, 618, 634 P.2d 80, 94 (1981)).
Here, at most, HRS § 291-5(a) provides for a permissible inference. Since the trier of fact is not required to infer that a BAC of 0.10 percent or more, taken within three hours of the stop, proves that the defendant was driving under the influence of intoxicating liquor at the time of the stop, the inference does not have an impermissible burden-shifting effect. It therefore passes constitutional muster.
D.
The record shows that the trial court admitted into evidence the blood test result indicating that Defendant's BAC was 0.18 percent at 2:30 a.m. The court, pursuant to HRS § 291-5(a), considered the test result as competent evidence that Defendant was under the influence of intoxicating liquor at 1:17 a.m., the time that the police officers actually stopped Defendant. The court also admitted and weighed the testimony of Dr. Kienitz. The court, however, did not find the doctor's testimony persuasive, and found Defendant guilty under HRS § 291-4(a)(2).
Contrary to Defendant's contention, there was no deficiency in the prosecution's case.
Affirmed.
Disposition
Affirmed.
Page 1 2 3 4 5 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|