Erickson v. Municipality of Anchorage

• Decision Date: 29 April 1983
• Docket Number: No. 7058,7058
• Citation: 662 P.2d 963
• Parties: Jean C. ERICKSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Court: Alaska Court of Appeals

Page 963

662 P.2d 963

Jean C. ERICKSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

No. 7058.

Court of Appeals of Alaska.

April 29, 1983.

Marcia Vandercook, Gilmore & Feldman, Anchorage, for appellant.

Michael Marsh, Asst. Mun. Prosecutor, Allen M. Bailey, Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION OF THE COURT

SINGLETON, Judge.

Jean C. Erickson was convicted of driving while intoxicated. AMC 9.28.020. She appeals contending that the trial court erred (1) in admitting certain evidence; (2) in denying a motion for a judgment of acquittal; (3) in instructing the jury; and (4) in failing to sustain objections to the prosecutor's arguments. All of these contentions rest on two propositions. Erickson first contends that a conviction for a violation of AMC 9.28.020 requires proof of the defendant's blood-alcohol level at the time he drives a motor vehicle. Second, she claims that where the prosecutor's case depends upon a blood-alcohol test administered to a defendant after he ceases driving, there must in addition be expert testimony providing a nexus between the results of the test and the driver's blood-alcohol level at the earlier time when he was driving. See, e.g., Page v. State, 657 P.2d 850 (Alaska App.1983) (where an inference from one specific fact to another fact requires reliance on a proposition of generalized knowledge, which is not subject to judicial notice, the proposition must be proved by expert testimony). We affirm the decision of the district court.

PART I

AMC § 9.28.020 provides:

Driving While Intoxicated.

A. It is unlawful for any person to commit the crime of driving while intoxicated.

B. A person commits the crime of driving while intoxicated if he or she operates, drives or is in actual physical control of a motor vehicle ...

....

2. when there is 0.10% or more by weight of alcohol in his or her blood or 100 milligrams or more of alcohol per 100 milliliters of his or her blood, or when there is 0.10 gram or more of We are satisfied that the assembly, by utilizing the language "as determined by a chemical test within four hours of his arrest ...," intended to establish two presumptions when it enacted the foregoing ordinance: (1) that a "chemical test," which includes a breathalyzer examination, accurately reflects a subject's blood-alcohol level at the time it is administered and (2) that an examination of a subject conducted within four hours of his driving will result in a reading equal to or less than the actual blood-alcohol rate at the time of driving. Doyle v. State, 633 P.2d 306, 310 (Alaska App.1981). ¹ Presentation of these presumptions to the jury is governed by A.R.E. 303 which provides:

alcohol per 210 liters of his or her breath as determined by a chemical test within four hours of the offense ...

(a) Effect.

(1) Presumptions Directed Against an Accused. In all criminal cases when not otherwise provided for by statute, by these rules or by judicial decision, a presumption directed against the accused imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. However, if the accused fails to offer evidence to rebut or meet the presumption, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. If the accused offers evidence to rebut or meet the presumption, the court may instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury.

In his commentary to A.R.E. 303, Professor Saltzburg explains the reasons for the rule and its intended operation as follows:

If a presumption cannot be binding on a defendant, what is its utility? Judge Weinstein identifies a two-fold function:

Presumptions are utilized to overcome two separate problems in federal law. Primarily this function is to lessen the prosecution's burden of establishing guilt by authorizing short-cuts in proof and exerting pressure on the person with the most knowledge to come forward with an explanation ....

In addition, a presumption may serve the secondary function of making undesirable activities amenable to federal jurisdiction. 1 Weinstein's Evidence, Paragraph 303 (1975). The second function is of no concern to the states in their lawmaking activities. But a third function may be important. "In a borderline case a judge may be influenced by the legislative judgment of Congress [or a state legislature] to submit a basic fact to a jury which he would not have submitted as merely circustantial [sic] evidence of the presumed fact." Id. Thus, the first and third functions are the important ones for the states. There also may be a fourth function--to make clear the intent of the legislature in special circumstances.

Subdivision (a) allows presumptions to perform their intended functions, but prevents them from exerting too great an impact on the outcome of a case. If a presumption is created by the legislature or the courts, it serves as an incentive for the accused to submit rebuttal evidence. If no rebuttal evidence or insufficient evidence is offered, the court, without using the word "presumption," will instruct the jury that it may, but is not bound to, infer the existence of the presumed fact from proof of the basic fact. Such an instruction is couched purely in terms of a permissible inference; no attempt is made to guide the jury in assessing the sufficiency of the inference to prove guilt. This mandatory instruction is in the nature of a mild comment on the evidence. No good reason appears why the legislature or the courts cannot require a specific non-binding instruction when they deem it desirable.

If the accused offers evidence to rebut or meet the presumption, the giving of an instruction is discretionary. In instances where the nature of a presumption directed against the accused is such that the relationship between the proved fact and the presumed fact is self-evident or apparent, no instruction should normally be given by the court if the accused offers evidence to rebut or meet the presumption, since in such instances, a jury instruction would tend to emphasize unduly and unnecessarily the existence of the presumption. On the other hand, in circumstances where there is no obvious connection between the proved fact and the presumed fact, an instruction to the jury regarding the existence of the presumption would ordinarily be appropriate.

A good example of this latter situation would be the standard case involving the presumption created by a Breathalyzer examination. The proved fact in such a case would be a Breathalyzer reading of .10 percent blood alcohol or greater; the fact to be presumed from the proved fact is that the accused was under the influence of intoxicating liquor at the time of the test. Under normal circumstances, with no expert testimony concerning the significance of .10 percent blood alcohol level in terms of its effect on an individual's sobriety, the mere awareness of the proved fact--i.e., the .10 percent blood alcohol level--would be meaningless to the average juror. Assuming the accused in such a situation was willing to concede the blood alcohol level, but opted to rebut the presumption by arguing that, despite the blood alcohol level, he was not in fact impaired, the mere establishment of blood alcohol level by the prosecution would be rendered wholly ineffective in the absence of a specific instruction to the jury concerning the presumption which arises from proof of a blood alcohol level of .10 percent or greater. It should be noted that the burden of coming forward is less onerous here than in Rule 301. This reflects a judgment that the defendant should have the benefit of reasonable doubts.

Commentary to A.R.E. 303 at 57-59.

The jury was instructed on two theories of driving while intoxicated. The jury was told:

The essential elements of the offense of driving while intoxicated in this case are as follows:

1. That at the time and place charged in the complaint, the defendant was operating or driving a motor vehicle in the Municipality of Anchorage, and 2. At the time defendant operated said vehicle, he either,

(a) was under the influence of intoxicating liquor, or,

(b) had 0.10 grams of alcohol or more per 210 liters of his breath.

While our view of the ordinance would have entitled the municipality to further instructions indicating the effect of the "presumptions" we believe established by the ordinance, defendant was not prejudiced by the absence of those instructions. In summary, we hold that the breathalyzer result alone established a prima facie case, entitling the municipality to go to the jury on the issue of Erickson's blood-alcohol level at the time of her driving. The court did not err in its instructions or in denying the motion for judgment of acquittal. By the same token, the prosecutor's remarks in closing argument were within the range of the evidence and not improper.

PART II

As an alternate holding, if we were to accept arguendo Erickson's construction of the ordinance, we would reject her contention that the evidence presented to the jury would have been insufficient to enable it to determine that her blood-alcohol rate at the time she was driving exceeded the ordinance's limitations. A fortiori, we would reject her contention that expert evidence was necessary to relate a person's blood-alcohol rate at the time a test is administered to their blood-alcohol rate at an earlier time when they were driving.

On March 19, 1982, at 3:44 a.m., Anchorage Police Officer ...