THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Driving Under The Influence (DUI): Blood Alcohol Level
1. Jury Must
Distinguish Between Blood Alcohol Level At Time Of The Test And
Defendant's
Condition At The Time Of Operating The Vehicle
2. Jury Must Consider
Concentration Of Blood Alcohol At The Time Of The Driving Or
Incident, Not At
The Time The Blood Sample Was Drawn
3. "Blood Alcohol
Curve"
4. Jurors May Not
Speculate Whether Blood Alcohol Content Was On Absorption Or
Elimination Portion
Of The Curve
5. Percentage Of Blood
Alcohol Variance: Factors To Consider
6. Jury To Decide Whether
To Accept Expert’s Opinion Concerning Blood Alcohol
Content
7. Gas Chromatograph Test:
Factors To Consider
8. Defendant Not
Required To Have Independent Test; No Inference From Failure
To Do So
9. Retrograde
Extrapolation Cannot Be Based On Single Test
10. Blood Alcohol Test: Chain Of
Custody
11. Defendant Has No Burden To
Produce Evidence Of Conversion Ratio Of Alcohol
Percentage By Volume
12. Erroneous Suggestions That Second
Test Would Increase Possibility Of Conviction
Or Penalties; Presumption
13. Second Test Requested By A
Defendant Cannot Be Used By The Prosecution
14. State’s Authority To
Require Two Tests; Presumption
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Jury Must Distinguish Between Blood Alcohol Level At Time Of The Test And Defendant's Condition At The Time Of Operating The Vehicle
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Your duty today is to distinguish between the blood alcohol level at the time of the test and the defendant's condition at the time of operating of the vehicle. Because alcohol was probably either being absorbed into the defendant's blood at the time of the test or was being metabolized at the time of the test, a test result can never be conclusive on the issue of what the defendant's precise blood alcohol level was at the time of operating the vehicle.
SAMPLE INSTRUCTION # 2:
Evidence has been received that, about four hours after the defendant's alleged operating of a motor vehicle, a sample of the defendant's blood was taken. An analysis of the sample has also been received. If you are satisfied beyond a reasonable doubt that there was ten-hundredths of one percent or more by weight of alcohol in the defendant's blood at the time the defendant operated the motor vehicle, you may find from that fact alone that the defendant's blood alcohol concentration was ten-hundredths of one percent or more at the time of the alleged operating, but you are not required to do so. Because the sample of blood was not taken within three hours after the alleged operating of the motor vehicle by the defendant, the state must prove to you by expert testimony beyond a reasonable doubt the probative value of the chemical analysis result before you may find that there was ten-hundredths of one percent or more by weight of alcohol in the defendant's blood at the time of the alleged operation of the motor vehicle. You the jury are here to decide the question of whether the defendant's blood alcohol concentration was ten-hundredths of one percent or more at the time of the alleged operating of the basis of all the evidence in this case, and you should not find that the defendant's blood alcohol concentration was ten-hundredths of one percent or more at the time of the alleged operating unless you are satisfied of that fact beyond a reasonable doubt.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Fiedler, No. 85-CR-48 (Rock County Circuit Court); Wis. Stat. §885.235(3) [Proposed addition to Wis JI Crim 1186].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Jury Must Consider Concentration Of Blood Alcohol At The Time Of The Driving Or Incident, Not At The Time The Blood Sample Was Drawn
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The state has introduced evidence showing the presence of alcohol in the defendant's blood. The state has introduced evidence showing that a blood sample was drawn from the defendant a period of time after the ________ (incident, e.g., car accident). Relevant to your determination today is the concentration of alcohol in the defendant's blood at the time of the ________ (incident, e.g., car accident), not at the time the blood sample was drawn. Therefore, you must take into consideration the amount of time that passed between the ________ (incident, e.g., car accident) and the taking of the blood sample.
SAMPLE INSTRUCTION # 2:
One of the issues in this case is whether at the time of the accident the percentage of alcohol in __________’s (name of defendant) blood was over ________(DUI percentage e.g., 10 percent). The accident occurred approximately _______ hour(s) before blood was taken from __________ (name of defendant). If all the prosecution has proven is that at approximately __________ (time) (p.m./a.m.) on __________ (date), __________’s (name of defendant) blood contained over ________(DUI percentage e.g., 10 percent) percent alcohol, but has not proven beyond a reasonable doubt that (his/her) blood was over this percent at the time of the accident, then you must find (him /her) not guilty of Count _____.
AUTHORITIES:
State v. Vick, 104 Wis. 2d 678, 312 N.W.2d 489 (1981); see also State v. Ladwig, 434 N.W.2d 594 (S.D. 1989).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Purdy, No. F-932187 (Milwaukee County, Wisconsin, 1994).
SAMPLE INSTRUCTION # 3:
One of the issues in this case is whether at the time of driving __________ (name of defendant) had ________ (percentage, e.g., 0.08%) or more by weight of alcohol in the defendant's blood. The driving occurred approximately ____ hours before __________ (name of defendant) had (his/her) blood drawn. If all the prosecution has proven is that at approximately _______ (time) on _______ (date), __________’s (name of defendant) blood contained over ________ (percentage, e.g., 0.08%) or more of alcohol, but has not proven beyond a reasonable doubt that (his/her) blood contained this much alcohol at the time of driving, then you must find (him/her) not guilty of this charge.
SAMPLE INSTRUCTION # 4 [breath test]:
One of the issues in this case is whether at the time of driving __________ (name of defendant) had _______ (percentage, e.g., 0.1) grams or more of alcohol in ________ (amount e.g., 210) liters of (his/her) breath. The driving occurred approximately _________ hours before __________ (name of defendant) took the intoxilyzer test. If all the prosecution has proven is that at approximately _______ (time) on _______ (date), __________’s (name of defendant) breath contained over _______ (percentage, e.g., 0.1) grams of alcohol, but has not proven that (his/her) breath contained this much alcohol at the time of driving, then you must find (him/her) not guilty of this charge.
AUTHORITIES:
State v. Vick, 104 Wis. 2d 678, 312 N.W.2d 489 (1981); see also State v. Ladwig, 434 N.W.2d 594 (S.D. 1989).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Purdy, Milwaukee County Case No. F-932187 (1994).
SAMPLE INSTRUCTION # 5:
__________’s (name of defendant) position is that (he/she) did not have a prohibited alcohol concentration at the time (he/she) was driving because (his/her) body was still absorbing alcohol. Unless you find that the state has proven beyond a reasonable doubt that __________ (name of defendant) had a prohibited alcohol concentration at the time of driving, as opposed to at the time (his/her) blood was tested, you must find (him/her) not guilty of driving with a prohibited alcohol concentration.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. "Blood Alcohol Curve"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The "blood-alcohol curve" refers to the manner in which a human body absorbs alcohol into the blood and then metabolizes it. It is scientifically established that alcohol is absorbed at different rates by different people and that a variety of factors effect the rate at which alcohol is absorbed by a given person at a given time. The blood-alcohol curve is relevant to your considerations because it is necessary for you to distinguish between the amount of alcohol in the blood at the time of the test, as indicated by the test result, and the key issue in this case, which is the amount of alcohol in the blood at the time of driving. The amount of alcohol in the blood at the time of the test may be higher or lower than the amount at the time of driving.
SAMPLE INSTRUCTION # 2:
The "blood-alcohol curve" refers to the manner in which a human body absorbs alcohol into the blood and then metabolizes it. It is scientifically established that alcohol is absorbed at different rates by different people and that a variety of factors affect the rate at which alcohol is absorbed by a given person at a given time. Under certain circumstances the person's body could be absorbing alcohol during the time between the driving and the test, thus making the alcohol concentration in the blood at the time of the test higher than the amount actually in the blood at the time of driving.
It is the state's obligation to establish beyond a reasonable doubt that the defendant was under the influence of an intoxicant at the time of the alleged driving, not at the time of the breath test.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See NCJIC 89.5.13 [Drunk Driving: Rising Blood Alcohol Defense -- Theory That Blood Alcohol Level Was Lower At Time Of Driving Than When Tested].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Jurors May Not Speculate Whether Blood Alcohol Content Was On Absorption Or Elimination Portion Of The Curve
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You may not speculate whether the blood alcohol of _______ (percentage, e.g.,.23%) found by __________ (name of expert) was tested while __________ (name of defendant) was on the absorbtion or elimination portion of the curve.
Neither may you speculate on the slope of that curve and on whether the concentration of blood alcohol was over_________ (DUI percentage e.g. .10%) at _________ (time), the approximate time of the accident.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See NCJIC 89.5.13 [Drunk Driving: Rising Blood Alcohol Defense -- Theory That Blood Alcohol Level Was Lower At Time Of Driving Than When Tested].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Percentage Of Blood Alcohol Variance: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The question whether there was a blood alcohol concentration of more than ________ (percentage e.g., 0.10) percent at the time of operation of the car is significant in this case. The relevance of a test result showing more than 0.10 percent at some time after operation will vary, depending on many factors, including the person's physical condition, what the person had to eat, what the person drank, and the length of time over which the drinks were consumed.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See NCJIC 89.5.10 [Drunk Driving: Challenge To Partition Ratio Presumption].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Jury To Decide Whether To Accept Expert’s Opinion Concerning Blood Alcohol Content
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You have heard testimony from an expert witness showing that there may have been ___________ (percentage, e.g., 0.05) percent or less by weight of alcohol in the defendant's blood at the time of operating the vehicle. You must decide whether you accept the expert's testimony on this point. If you find that there was less than ___________ (percentage, e.g., 0.05) of one percent by weight of alcohol in the defendant's blood, then under the law in ___________ (state) certain conclusions must follow. First, if you find that there was less than ___________ (percentage, e.g., 0.05) percent by weight of alcohol in the defendant's blood, you must consider this to be prima facie evidence that the defendant was not under the influence of alcohol at the time of operation of the vehicle. Second, if you find that there was ___________ (percentage, e.g., 0.05) percent or less by weight of alcohol in the defendant's blood, you must consider this evidence to be prima facie evidence that the defendant's blood alcohol concentration was not ___________ (DUI percentage, e.g., 0.10) percent or more at the time of operation of the vehicle.
AUTHORITY:
Wis. Stat. §885.235(1)(a).
SAMPLE INSTRUCTION # 2:
You have heard evidence from an expert showing that there may have been more than ___________ (percentage, e.g., 0.05) percent but less than ___________ (DUI percentage, e.g., 0.10) percent by weight of alcohol in the defendant's blood. You must decide whether you accept this evidence. If you find that there was more than ___________ (percentage, e.g., 0.05) of one percent but less than ___________ (DUI percentage, e.g., 0.10) of one percent by weight of alcohol in the defendant's blood, then under the law of Wisconsin certain conclusions must follow. Under the law in Wisconsin, you may consider this testimony to be relevant on the issue of intoxication, but you must not give this testimony any prima facie effect. In other words, you may consider this evidence on the issue of intoxication, but by itself this evidence is not a sufficient basis for finding that the defendant was under the influence of alcohol at the time of operation of the vehicle.
Therefore, you may consider this evidence regarding the expert's testimony along with all of the other credible evidence in the case, giving to it just such weight as you deem it entitled to receive.
AUTHORITY:
Wis. Stat. §885.235(1)(b).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Gas Chromatograph Test: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of expert) has given her opinion that the blood which (he/she) tested at the _______ (lab e.g., Wisconsin State Crime Laboratory) by means of a gas chromatograph contained more than ______ (DUI percentage e.g., .10) percent alcohol by weight.
An opinion based upon the results produced by a gas chromatograph must be weighed by a jury in the light of evidence concerning that analytic method and the qualifications of the witness who testified to (his/her) opinion.
In determining how much weight, if any, you should give to __________’s (name of expert) opinion you should consider the following factors:
1.Whether you have heard testimony concerning the refutability or testability of __________’s (name of expert) opinion that the gas chromatograph produces an accurate estimate of the percentage of alcohol in blood.
2.Whether you have heard evidence that the use of the gas chromatograph to test the alcoholic content in blood has been subject to peer review.
3.Whether you have heard evidence concerning the known or potential error rate of this analytic technique.
4.Whether the gas chromatographic technique is generally recognized in the scientific community as an appropriate methodology to ascertain the percentage of alcohol in blood.
AUTHORITIES:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, 482-84 (1993); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir. 1994); United States v. Bonds, 12 F.3d 540, 554-56 (6th Cir. 1993); United States v. Amador-Galvan, 9 F.3d 1414, 1418 (9th Cir. 1993); Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 (7th Cir. 1993); United States v. Daccarett, 6 F.3d 37, 58 (2d Cir. 1993); Wilson v. City of Chicago, 6 F.3d 1233, 1238-40 (7th Cir. 1993); United States v. Martinez, 3 F.3d 1191, 1197-98 (8th Cir. 1993); United States v. Bynum, 3 F.3d 769, 773 (4th Cir. 1993); Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir. 1993); State v. Alberico, 116 N.M. 151, 861 P.2d 192 (1993).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
See also THE SHELLOW COLLECTION: Witnesses: Expert Witnesses.
RELATED NCJIC MATERIALS:
See also generally NCJIC Chapter 29: Expert Opinion Testimony.
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Defendant Not Required To Have Independent Test; No Inference From Failure To Do So
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The prosecutor in (his/her) questions of __________ (name of expert) suggested that __________ (name of defendant) had some obligation to have (his/her) blood independently tested if (he/she) wished to challenge the testimony of __________ (name of expert) [and __________ (name of expert)].
That is not the law. You may draw no inference whatsoever from the fact that __________ (name of defendant) did not request (his/her) own blood test.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See also generally NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See also generally NCJIC Chapter 270: Burdens And Standards Of Proof.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Retrograde Extrapolation Cannot Be Based On Single Test
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is __________’s (name of defendant) position that it is impossible from this evidence to conduct the retrograde extrapolation from ______ (later time) back to ______ (earlier time) because only one blood test was conducted and for this reason the prosecution has failed to prove that (his/her) blood alcohol level at ______ (earlier time) was ________ (DUI percentage e.g., .10) percent or over.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See NCJIC 89.5.13 [Drunk Driving: Rising Blood Alcohol Defense -- Theory That Blood Alcohol Level Was Lower At Time Of Driving Than When Tested].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Blood Alcohol Test: Chain Of Custody
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have received evidence of blood test results performed by a state chemist. These test results must not be given any weight whatsoever unless you find beyond a reasonable doubt that the blood samples tested were, in fact, obtained from the defendant. In making a determination whether the blood samples tested were the same samples seized from the defendant, you should consider whether a continuous chain of custody has been proven between the point of acquisition of the blood sample by the state and the tests performed by the chemists.
AUTHORITY:
In Re The Paternity of J.S.C., 135 Wis. 2d 280, 400 N.W.2d 48 (Ct. App. 1986).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Chain Of Custody.
RELATED NCJIC MATERIALS:
See NCJIC 88.1.8 [Factors To Consider In Evaluating Analysis Of The Drug Or Substance].
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See NCJIC 89.5.12 [Drunk Driving: Chain Of Custody Challenge To Blood Alcohol Test].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Defendant Has No Burden To Produce Evidence Of Conversion Ratio Of Alcohol Percentage By Volume
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of defendant) is charged with operating a motor vehicle with a prohibited alcohol concentration. [The statutes of _______ (state) in part define the phrase "prohibited alcohol concentration" as a blood alcohol concentration of ________ (percentage, e.g., 0.1%) or more by weight of alcohol in the person's blood. However, the statutes also in part define the phrase "alcohol concentration" as the number of grams of alcohol in _________ (amount e.g., 100) milliliters of a person's blood.]
For a jury to calculate whether a person operated a motor vehicle with a prohibited alcohol concentration it is necessary for the prosecution of produce evidence which permits the jury to convert the alcohol percentage by volume shown in the report of the State Laboratory to an alcohol percentage by weight. The defendant has no burden to produce evidence of the conversion ratio.
If the prosecution has not offered evidence which permits you to convert evidence of percentage alcohol by volume to percentage alcohol by weight, the prosecution has not met its burden of proof and __________ (name of defendant) should be found not guilty of this offense.
AUTHORITIES:
Wis. Stat. §§340.01(46m)(a), 346.63(1)(b) and 885.235(5)(a).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See also generally NCJIC 18.4 [Failure Of Defendant To Present Evidence].
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
See also generally NCJIC Chapter 270: Burdens And Standards Of Proof.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Erroneous Suggestions That Second Test Would Increase Possibility Of Conviction Or Penalties; Presumption
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under the state statutes, __________ (name of defendant) had an absolute right to a second test of the alcohol concentration in (his/her) blood. As the evidence has shown, a second test of __________’s (name of defendant) blood could have established that (he/she) was still absorbing alcohol at the time of the __________ (driving/accident) and that (he/she) was below ______ (DUI percentage e.g., .10%) when the __________ (driving/accident) occurred. [Paragraph 4 of the Informing the Accused form read to __________ (name of defendant) by __________ (name of law enforcement officer)], [(H/h)owever, __________ (name of law enforcement officer) improperly and erroneously suggested that an alternative test would increase the possibility that (his/her) license would be suspended or (he/she) would suffer other penalties.]
Because [the Informing the Accused form] [__________ (name of law enforcement officer)] improperly deterred __________ (name of defendant) from asserting her absolute right to a second test that could have proved (he/she) was under . ______ (DUI percentage e.g., .10%) at the time of the __________ (driving/accident), you are instructed that you must assume that __________ (name of defendant) still was absorbing alcohol at the time of the __________ (driving/accident).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Second Test Requested By A Defendant Cannot Be Used By The Prosecution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that __________ (name of defendant) was told (he/she) could request an additional test of the alcoholic content in (his/her) blood. However, __________ (name of law enforcement officer) told the defendant if (he/she) had requested an additional test and that test showed a blood alcohol level over _______ (DUI percentage e.g., .10%), (he/she) could have been prosecuted even though the first test showed a blood alcohol level under _______ (DUI percentage e.g., .10%).
That is not the law. A second test requested by a defendant cannot be used by the prosecution. For this reason you must attach no significance whatsoever to the fact that __________ (name of defendant) did not request (his/her) own blood test.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. State’s Authority To Require Two Tests; Presumption
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The state had the authority to require __________ (name of defendant) to submit to two tests of (his/her) alcohol concentration. As the evidence has shown, a second test of __________’s (name of defendant) alcohol concentration could have established whether (he/she) was absorbing or eliminating alcohol at the time of the accident and the rate at which (he/she) was absorbing or eliminating alcohol. Without a second test, no expert can determine what ________________ (driving/accident) accident on _____ (date).
Because the state did not exercise its authority to have __________ (name of defendant) take a second test, you must assume that __________ (name of defendant) still was absorbing alcohol at the time of the accident and that (his/her) blood alcohol concentration was less than ______ (DUI percentage e.g., 0.1%). Further, you must keep in mind that __________ (name of defendant) had no obligation to request (his/her) own test.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: DUI: Generally.
RELATED NCJIC MATERIALS:
See generally NCJIC: Chapter 89: Drunk Driving.
See NCJIC 89.3 [Defense Theory That Defendant Was Not Under The Influence].
See NCJIC 89.5 [Defenses And Defense Theories Regarding Blood Alcohol Testing].