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State v. Shofner6/9/1999
Reporter of Decisions
Submitted on Briefs: May 24, 1999
Majority: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and CALKINS, JJ.
Concurrence:SAUFLEY, and ALEXANDER, JJ.
Martin Shofner appeals from a judgment of conviction of reckless conduct with a dangerous weapon (Class C), 17-A M.R.S.A. §§ 211, 1252(4) (1983), entered after a jury trial in Superior Court (Sagadahoc County, Warren, J.). On appeal, Shofner challenges, inter alia, a jury instruction given by the court on the presumption of intoxication established by 29-A M.R.S.A. § 2432 (1996). Finding no error, we affirm the judgment.
Shofner was arrested and indicted after an incident in which, after consuming a considerable amount of alcohol, he discharged a firearm at night in the vicinity of a forest ranger. At trial, a deputy sheriff testified without objection that after arresting Shofner, he administered an intoxilyzer test that revealed Shofner's blood-alcohol level to be 0.16%. The deputy further testified, also without objection, that the legal limit in Maine for operating a motor vehicle is 0.08%, and that Shofner's blood-alcohol level was twice that limit.
Over Shofner's objection, the trial court instructed the jury that "if you find that the defendant had a blood/alcohol content in excess of .08 percent, you may infer that the defendant was under the influence of intoxicants." That instruction was based on 29-A M.R.S.A. § 2432(3): "In proceedings other than [OUI prosecutions], a person is presumed to be under the influence of intoxicants if that person has a blood-alcohol level of 0.08% or more."
Shofner argues that the instruction, derived from a section of the motor vehicle code, was improper in a case not involving a motor vehicle. We have approved jury instructions based on the predecessor to section 2432 to help the jury decide whether a manslaughter defendant acted recklessly or with criminal negligence. See State v. Herbest, 551 A.2d 442, 446 (Me. 1988); State v. Carter, 443 A.2d 958, 960-61 (Me. 1982); State v. Rhoades, 380 A.2d 1023, 1026 (Me. 1977). Those cases all involved motor vehicles. Nothing in those cases or the statute, however, suggests that the presumption of intoxication is only relevant in a case where the defendant was operating a motor vehicle. The inference that a defendant was under the influence of alcohol when he chose to drive is relevant to whether he acted with the recklessness or criminal negligence required for a manslaughter conviction. See Herbest, 551 A.2d at 446. In the same way, the inference that a defendant was under the influence when he chose to fire a gun is relevant to the recklessness required for a reckless conduct conviction.
The trial court's instruction was appropriate here, because the jury heard the deputy testify that Shofner's blood-alcohol level of 0.16% was twice the legal limit for driving. Although that testimony was accurate, see 29-A M.R.S.A. § 2411(1)(B) (1996) (a person commits OUI by driving with a blood-alcohol level of 0.08% or more), the court's instruction explained the relevant law and made it clear to the jury that the blood-alcohol level of 0.08% or higher raised an inference of intoxication that the jury was free to accept or reject. See M.R. Evid. 303(c). The challenged instruction was not error.
Shofner's other contentions on appeal do not require Discussion.
The entry is:
Judgment affirmed.
ALEXANDER, J., with whom SAUFLEY, J., joins, Concurring.
We concur in the Court's opinion. We write separately only to emphasize that while we hold that giving the section 2432(3) inference instruction
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