Justices rule jury instruction not fundamental error

The Indiana Supreme Court found a jury instruction that jurors “shall presume” that a man’s alcohol concentration equivalent was above the legal limit if his chemical test, taken hours later, was at 0.08 or higher was not fundamental error. As such, it affirmed his conviction .

Dannie Pattison was traveling on a country road with his taillights out when an officer pulled him over. As the officer was citing him, he noticed Pattison’s watery eyes, slurred speech and odor of alcohol. Pattison agreed to take a certified chemical test, and after an hour and a half, the test came back with a reading of 0.10 for his alcohol concentration equivalent. He was convicted of operating a vehicle with an ACE of 0.08 or more, a Class D felony because of prior convictions.

On appeal, Pattison challenged the jury’s instruction that “the jury shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per two hundred ten (210) liters of the person’s breath at the time the person operated the vehicle. However, the presumption is rebuttable.” Although he did not bring this argument up at trial, he argued this was fundamental error because it unconstitutionally shifted the burden to him to disprove an element of the crime. He said the jury must be instructed that it is free to accept or reject the presumption. The COA agreed and reversed his conviction and the Supreme Court granted transfer.

In a decision written by Justice Mark Massa, the Supreme Court said the jury instruction is a mandatory rebuttable presumption but does not constitute fundamental error because it does not shift the burden of proof from the state to the defendant to disprove an element of the crime.

“The presumption of Instruction 6 does not relieve the State of its obligation to prove Pattison’s ACE, but merely negates the need for live testimony explaining retrograde extrapolation as a method to estimate his ACE at the time of driving,” Massa wrote. Retrograde extrapolation is the technique through which experts estimate alcohol consumption at an earlier time.

Massa wrote this instruction saves thousands of dollars in costs because having an expert at every trial explain retrograde extrapolation would be expensive and the instruction explains it without any cost. Also, the rate of alcohol absorption can vary among people, so figuring out the extrapolation may not always be accurate for every individual.

Massa also wrote that the defendant is free to present evidence against the test, as Pattison did in his case when he said his high results were due to his inhaler use.

“Considering the scientific context of the statute creating the presumption, we maintain that our’ legislature has fashioned an inspection and certification scheme to insure the reliability of test results, thereby protecting the rights of the accused, while at the same time streamlining the trial process,’” Massa wrote, citing Platt v. State, 589 N.E.2d 222 (Ind. 1992).

The case is Donnie Carl Pattison v. State of Indiana, 27S05-1603-CR-115.