Jennifer Nelson for www.theindianalawyer.com
A jury instruction given at a man’s drunken-driving trial resulted in fundamental error because it contained a constitutionally impermissible evidentiary presumption, the Indiana Court of Appeals concluded. As such, the court reversed the man’s conviction.
At Dannie Carl Pattison’s jury trial for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.08 percent or more, the jury was given an instruction regarding rebuttable presumption. The instruction said if the evidence establishes that a chemical test was performed within three hours and the person charged had at least 0.08 percent of alcohol in 210 liters of the person’s breath, the jury shall presume that Pattison had an ACE of at least 0.08 percent at the time he operated the vehicle. The last sentence of the instruction said the presumption is rebuttable; Pattison argued the presumption created in the instruction unconstitutionally shifted the burden of proof to him.
In Dannie Carl Pattison v. State of Indiana, 27A05-1411-CR-517, the judges agreed, noting the instruction was essentially the same one given in Hall v. State, 560 N.E.2d 561, 563 (Ind. Ct. App. 1990). In Hall, the court held that a jury instruction that tracked the language of the statute was erroneous because it ran the risk of misleading a jury into thinking the presumption was mandatory, rather than permissive.
Because Pattison didn’t object to the instruction at trial, the COA evaluated it for fundamental error. The judges reversed Pattison’s conviction because the defect of the jury instruction wasn’t corrected by any other jury instruction and the error was not harmless based on the other evidence presented.
