Opinion
No. 141-79
Opinion Filed September 8, 1980
Motor Vehicles — Alcohol Tests — Presumptions and Inferences
Where statute provided that if there was 0.10 percent or more by weight of alcohol in the blood or breath of one prosecuted for driving under the influence it shall be presumed that he was under the influence, and court's instruction gave the statute the effect of a burden-shifting presumption, rather than the effect of a permissive inference, there was reversible error. 23 V.S.A. § 1204(a)(3).
Appeal from conviction of driving under the influence. District Court, Unit No. 2, Chittenden Circuit, Costello, Chief District Judge, presiding. Reversed and remanded.
Mark J. Keller, Chittenden County State's Attorney, and Sandra L. Baird and Susan R. Via, Deputy State's Attorneys, Burlington, for Plaintiff.
James L. Morse, Defender General, William A. Nelson, Appellate Defender, and Daniel Albert, Law Clerk (On the Brief), Montpelier, for Defendant.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
This is an appeal from a conviction for operating a motor vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). Evidence of a blood-alcohol content of .16% by weight at the time of testing was introduced, and related back to the time of operation. This triggered the operation of 23 V.S.A. § 1204(a)(3), which allows the jury to find that the defendant was under the influence at the time of operation upon proof of .10% blood-alcohol content by weight at that time. State v. Dacey, 138 Vt. 491, 418 A.2d 856 (1980). The court, however, erred in its instructions to the jury by giving § 1204(a)(3) the effect of a burden-shifting presumption, rather than a permissive inference. Accordingly, our decision in State v. Dacey, supra, requires reversal.
Because we are reversing, the other claims of error raised by the defendant need not be addressed.
Reversed and remanded.