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Pilant v. State6/24/2005
ath test.
Kalmakoff, 715 P.2d at 262.
The defendant in Kalmakoff argued that this wording created a mandatory presumption that he was guilty if his breath test result equaled or exceeded the legal limit, and that the instruction thus shifted the burden of persuasion or proof away from the government and to the defendant. We rejected these arguments:
In our view, [the challenged jury instruction], when given a common sense reading, does not create a mandatory presumption. Rather, it establishes nothing more than a permissive inference. In this regard, the instruction substantially complies with the requirements of Evidence Rule 303(a)(1), which governs presumptions against the accused in criminal cases.
Similarly, nothing in the plain language of [the instruction] can be said to shift the burden of proof or of persuasion to the accused.
Id. at 262-63.
For these reasons, we conclude that the jury instruction in Pilant's case was proper. The judgement of the district court is AFFIRMED.
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