State v. Vick

• Decision Date: 01 December 1981
• Docket Number: No. 80-1046,80-1046
• Citation: 104 Wis.2d 678,312 N.W.2d 489
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Clarence R. VICK, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 489

312 N.W.2d 489

104 Wis.2d 678

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Clarence R. VICK, Defendant-Appellant.

No. 80-1046.

Supreme Court of Wisconsin.

Argued Nov. 2, 1981.

Decided Dec. 1, 1981.

Edward S. Marion, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., on brief.

Larry I. Hanson, Madison, argued, for defendant-appellant; Timothy J. Casper and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief. CALLOW, Justice.

This is a review of an unpublished decision, 101 Wis.2d 735, 306 N.W.2d 308, of the court of appeals reversing the judgment of Dane county circuit court Judge Mark A. Frankel which convicted the defendant of operating a motor vehicle while under the influence of an intoxicant contrary to sec. 346.63(1), Stats. The trial court entered judgment on the verdict after trial to a jury.

Because the facts in this case are unique, we set them out in detail. On November 16, 1979, at approximately 5 p. m., Wisconsin State Patrol Trooper Delburn Walter observed defendant's vehicle traveling east on County Trunk Highway TT, cross over the center median of the road, and return to its proper lane. Walter followed the vehicle and observed it weave continuously in its own lane, going from the center median to the right edge of the road some eight to ten times, although the vehicle did not re-cross the center median. Walter followed the vehicle for about a mile before turning on his red lights. When the vehicle failed to pull over, Walter pulled alongside the vehicle twice. The first time the driver glanced at him, the second time he kept his eyes straight ahead. Walter continued to pursue the vehicle, honking his horn and flashing his headlights until the vehicle finally stopped directly ahead of him in the eastbound lane of traffic. Walter estimated that he pursued the vehicle approximately 21/2 miles between the time he put his red lights on and the time the vehicle stopped. The defendant testified that Walter pulled next to him only once and that he immediately stopped his vehicle.

Walter testified that he exited his squad car, and as he approached the vehicle, he recognized the driver to be Clarence Vick (defendant), who was a personal acquaintance. As Walter spoke with the defendant, he detected a strong odor of alcohol. When Walter asked defendant for his driver's license, defendant answered with slurred speech. The defendant remained argumentative and uncooperative and was unable to perform the standard field sobriety heel-to-toe test. Defendant was arrested at approximately 5:10 p. m. on a charge of driving a vehicle while under the influence of an intoxicant. Walter testified that while en route to the police station, defendant stated he had picked up a friend at the hospital, stopped for a sandwich and a few drinks, took his friend home, stopped at Woods Tavern for a few drinks, and then started home. The defendant testified he stopped at Woods Tavern at approximately 4:30 p. m. where he had two brandy and sours and a glass of water before proceeding home at about 4:55 p. m. The bartender verified this at trial. Although the defendant admitted taking a friend home from the hospital, he denied they had stopped earlier in the afternoon for a sandwich and a few drinks and denied making such a statement to Walter. A nurse who was caring for defendant's sick friend testified that the friend was much too ill to have stopped for a sandwich and drinks on the way home from the hospital. Defendant denied that he was uncooperative during the arrest.

Defendant testified at trial that a 1942 accident left him paralyzed on the left side of his body, rendering him incapable of walking a straight line and causing him to slur his speech. The bartender-owner of Woods Tavern testified that she had known defendant for some time and that he always slurred his words. Walter testified that he had known defendant for many years and that he had noticed there was "something different" about defendant's walk.

State Patrol Trooper John Bruns administered a breathalyzer test to defendant at 5:46 p. m., approximately 36 minutes following his arrest. The test revealed that defendant's blood contained 0.13 plus percent by weight of alcohol. Pursuant to sec. 346.63(4), Stats., ¹ a driver is deemed under the influence of an intoxicant if his blood contains 0.10 percent or more by weight of alcohol.

Defendant's argument both at trial and on this appeal is that he was not under the influence of an intoxicant at the time of arrest because an insufficient amount of alcohol had been absorbed in his bloodstream to cause him to be under the influence. Expert testimony at trial revealed that, although alcohol absorption rates vary, generally 30 to 45 percent of the alcohol is absorbed within the first 15 minutes, 60 percent is absorbed within the first 30 minutes, and 90 percent is absorbed within the first hour. ² The state's expert witness Aldo Trameri testified that, based upon the fact that the defendant was observed operating a motor vehicle at 5:10 p. m. and a test result of 0.13 plus percent was obtained at 5:46 p. m., in his opinion defendant respondent would have had alcohol in his system at the time he was driving. Trameri was unable to state what the defendant's blood alcohol level would have been at the time of driving without additional facts. On cross-examination, Trameri agreed that the time at which the alcohol was consumed would affect the defendant's blood alcohol level at the time he was stopped. Defendant maintains that he was arrested approximately 15 minutes after leaving Woods Tavern, and he suggests that only a portion of his first drink and a much smaller portion of the second drink had been absorbed at the time of his arrest. Defendant asserts that, as he only lived about 51/2 miles from Woods Tavern, he would have arrived home before sufficient alcohol had been absorbed into his system to register 0.10 percent.

In considering the defendant's credibility, the jury could have recognized that the defendant's denial of the consumption of alcoholic beverages in excess of two, 7/8 ounce brandy and sours, in contradiction of Walter's testimony concerning defendant's admission at the time of the arrest, was suspect. Trameri's testimony, in response to a hypothetical question, revealed that a 220 to 230 pound man would have to consume approximately 10 ounces of 100 proof liquor in order to reach a blood-alcohol level of 0.13 percent.

After rejecting jury instructions fashioned by both the prosecution and the defense, the trial court instructed the jury in part as follows:

"Evidence has been received that, within two hours after defendant's alleged operation of a vehicle, a sample of his breath was taken, and evidence of an analysis of such breath sample has also been received. The law provides that the presence of ten hundredths of one percent or more, by weight, of alcohol in a person's blood, is a sufficient basis for finding that a person was under the influence of an intoxicant. Therefore, if you are satisfied beyond a reasonable doubt that, within two hours after the alleged operation of a vehicle, the defendant did have ten hundredths of one percent or more, by weight, of alcohol in his blood, then you may, on this evidence alone, find that he was under the influence of an intoxicant. But, you should so find only if you are satisfied beyond a reasonable doubt from all the evidence in this case, that the defendant, at the time of the alleged operation of a vehicle, was under the influence of an intoxicant as defined by these Instructions.

"If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant was operating a motor vehicle while under the influence of an intoxicant, then you should find the defendant guilty.

"If, however, you are not so satisfied, then you must find the defendant not guilty."

The trial court proceeded to instruct the jury to scrutinize all of the evidence in reaching its determination. The jury was instructed on the presumption of innocence, the state's duty to prove every element of a crime beyond a reasonable doubt, and the jury's duty to accord evidence such weight as it deserved and to draw its own conclusions and inferences from the evidence presented.

Defendant argues that the jury instruction created an unconstitutional presumption that, if defendant were under the influence of an intoxicant at the time of the breathalyzer test, he was also under the influence at the time he was driving.

The court of appeals drew the following conclusion:

"At best, the instruction is ambiguous. It informed the jury that the existence of a blood alcohol level of 0.10 percent or more is a sufficient basis for finding that defendant was under the influence of alcohol. It then stated that if the jury was satisfied that defendant had 0.10 percent or more of alcohol in his body within two hours after operation of the vehicle, it might, on that evidence alone, find that he was under the influence of an intoxicant. Thus, the instruction created a presumption that defendant was under the influence of an intoxicant if his blood alcohol level was 0.10 percent or more. The jury was allowed to find the presumed fact of intoxication from the proved fact of defendant's blood alcohol level. The instruction did not state, however, when the jury could find that defendant was under the influence of an intoxicant-at the time of the test or at the time of the operation of the vehicle." ³

This case calls upon us to determine whether the trial court's instruction on the use of the breathalyzer test set forth an unconstitutional presumption that (1) if it were proven defendant was under the influence of an intoxicant at the time of testing, that (2) then he was under the influence of an intoxicant at the time he was operating his vehicle. We...