State v. Vogel, Cr. N

• Decision Date: 05 March 1991
• Docket Number: Cr. N
• Citation: 467 N.W.2d 86
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Steven William VOGEL, Defendant and Appellant. o. 900197.
• Court: North Dakota Supreme Court

Page 86

467 N.W.2d 86

STATE of North Dakota, Plaintiff and Appellee, v. Steven William VOGEL, Defendant and Appellant.

Cr. No. 900197.

Supreme Court of North Dakota.

March 5, 1991.

Keith Reisenauer (argued), Asst. States Atty., Fargo, for plaintiff and appellee.

William Kirschner & Associates, Fargo, for defendant and appellant, argued by William Kirschner, Fargo.

MESCHKE, Justice.

Steven William Vogel appealed his jury conviction of the offense of actual physical control of a motor vehicle while under the influence of intoxicating liquor. We hold that the legislature defined the crime without unconstitutionally shifting the burden of proof to the accused, but that the trial court improperly did so by instructing the jury on the effect of evidence of Vogel's intoxilyzer test. We reverse and remand for a new trial.

Two Fargo police officers found Vogel asleep in his car in a parking lot about 1:20 a.m. one morning. The car engine was running, the headlights were on, and the doors were unlocked. Vogel was slumped over in the front seat. After knocking on the window, an officer opened the driver's door, turned off the engine and lights, and, with difficulty, roused Vogel. Vogel smelled of alcohol, appeared confused, and was unintelligible in responding to questions. The officer asked Vogel to leave his car and to be seated in the police car. Helped by an officer, Vogel unsteadily walked to the police car. Vogel was not asked to perform any field sobriety tests, but was arrested for actual physical control.

At the jail, an intoxilyzer test of Vogel reported a blood alcohol concentration of 0.13 of one percent. Vogel was charged alternatively with actual physical control of a vehicle while having a blood alcohol concentration of at least 0.10 of one percent within two hours of driving, or while being under the influence of intoxicating liquor.

At the jury trial, the intoxilyzer test was admitted into evidence, along with certified copies of the state toxicologist's register of testing devices currently approved, the register of currently certified operators of intoxilyzers, and the operational checklist and forms for intoxilyzer tests prescribed by the state toxicologist. After the prosecution rested, Vogel moved for acquittal on the alternative charge of actual physical control with a blood alcohol concentration of at least 0.10 of one percent within two hours of driving. Because there was no evidence of Vogel's time of driving, the trial court granted the motion and that charge was not submitted to the jury. The jury convicted Vogel of actual physical control while under the influence of intoxicating liquor.

In his appeal, Vogel argues that the jury instructions created an unconstitutional "mandatory irrebuttable presumption" that shifted the burden of proof to him.

I. PRESUMPTION OR DEFINITION?

The trial court instructed the jury about chemical tests for intoxication. ¹ Vogel begins with an attack on the second paragraph:

A person having a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after driving or being in physical control of a vehicle is under the influence of intoxicating liquor at the time of driving or being in physical control of a vehicle.

Vogel argues that this part created a "mandatory irrebuttable presumption" because it "contained no qualifying phrases and thus would lead a reasonable juror to have understood that once the State had proved the Defendant had a blood alcohol content above .10 that was it."

Vogel was convicted of violating NDCC 39-08-01(1)(b) by actual physical control of a vehicle while "under the influence of intoxicating liquor." See State v. Kimball, 361 N.W.2d 601 (N.D.1985). One specific definition of "under the influence of intoxicating liquor" is found in another section in the title on motor vehicles. This related definition, substantially included in this instruction, ² says:

A person having an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after driving or being in physical control of a vehicle is under the influence of intoxicating liquor at the time of driving or being in physical control of a vehicle.

NDCC 39-20-07(3). When first enacted, this subsection was worded differently and read, "shall be presumed to be under the influence of intoxicating liquor," rather than "is under the influence." (Emphasis added). State v. Hendrickson, 240 N.W.2d 846, 851 (N.D.1976). A 1983 amendment to this subsection replaced the phrase, "shall be presumed to be," with the single word, "is." S.L.1983, ch. 415, Sec. 29. Legislative history indicates that the intention of this enactment was to establish a "per se," strict-liability crime in two ways, one of which was this definition of "under the influence." House Judiciary Minutes, March 2, 1983, SB 2373. Using this legislative history, the prosecution counters that "we are no longer dealing with a presumption statute, but rather a per se statute." We agree.

The Due Process Clause of the Fourteenth Amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Due process also prohibits use of presumptions in jury instructions that have the effect of relieving the prosecution of its burden of proving every element of the crime beyond a reasonable doubt. ³ Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985). See also State v. Sheldon, 301 N.W.2d 604, 612 (N.D.1980); State v. Trieb, 315 N.W.2d 649 (N.D.1982). Jury instructions that use burden-shifting presumptions "subvert the presumption of innocence accorded to accused persons, and also invade the truth-finding task assigned solely to juries in criminal cases." ⁴ Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218 (1989). These due process principles are well established in the case law.

A line of expository opinions from the United States Supreme Court disapproves jury instructions that relieve the prosecution from its burden of proof on the critical question of intent to commit the crime. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Francis v. Franklin, 105 S.Ct. at 1977. Sometimes these opinions have referred to "conclusive" or "irrebuttable" presumptions. Sandstrom, 99 S.Ct. at 2456. Still, it is quite clear that the instructions deemed unconstitutional, however characterized, are "burden-shifting presumptions" which shift the burden of proof to the defendant on an element of the crime, usually intent. Justice Brennan's opinion for the Court in Francis v. Franklin helps clarify what is a "burden-shifting" presumption:

An irrebuttable presumption, of course, does not shift any burden to the defendant; it eliminates an element from the case if the State proves the requisite predicate facts. Thus the Court in Patterson [v. New York, 432 U.S. 197, 97 S.Ct. 2319 at 2329, 53 L.Ed.2d 281 (1977) ] could only have been referring to a mandatory rebuttable presumption when it stated that "such shifting of the burden of persuasion ... is impermissible." Ibid. (emphasis added).

105 S.Ct. at 1973 n. 5. ⁵ In this case, we consider whether the effect of the statutory definition of "under the influence of intoxicating liquor" shifts the burden of proof to the accused on any element.

We are not here concerned with a crime dependent upon the accused's intent. Rather, we are concerned with a strict liability crime of control of a vehicle while under the influence of intoxicating liquor. Principles against shifting the burden of proof to the accused have little bearing here. The prosecution must still prove every element of this crime beyond a reasonable doubt. Even when the intoxication element of control is further defined as "having a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after ... being in physical control of a vehicle," the burden of proof does not shift to the accused; the prosecution must prove each element of that detailed definition beyond a reasonable doubt. So, there is no unconstitutional presumption here, but only a detailed definition of the crime.

The legislature has the authority to define and punish crimes by enacting statutes. Article IV, Section 13, ND Constitution; State ex rel Larabee v. Barnes, 3 N.D. 319, 55 N.W. 883 (1893). Generally, a criminal statute is valid if it does not violate constitutional guarantees of individual rights. See State ex rel Linde v. Taylor, 33 N.D. 76, 156 N.W. 561 (1916). Recently, Chief Justice Erickstad sought to exemplify the difference between an unconstitutional presumption of the element of intent defined for a crime and a definition of a strict liability crime:

The legislature also has the authority to enact strict liability offenses which require no intent. See section 39-08-07, N.D.C.C. (hit and run); section 39-08-20, N.D.C.C. (driving without liability insurance); section 6-08-16, N.D.C.C. (insufficient funds). "Strict liability statutes in criminal law do not invariably violate constitutional requirements." State v. Olson, 356 N.W.2d 110, 112 (N.D.1984).

City of Dickinson v. Gresz, 450 N.W.2d 216, 220 (N.D.1989). A definition of a crime that does not shift the burden of proof to the accused is constitutional.

The legislature has defined one variation of the crime of actual physical control while under the influence of intoxicating liquor as the accused having a "alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test." Nothing in...