Wis JI-Criminal 2660

Statutory Definition of the Crime

Section 346.63(1)(b) of the Wisconsin Statutes is violated by one who drives or

operates a motor vehicle on a highway1 while that person has a prohibited alcohol

concentration. 2

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following two elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant (drove) (operated) a motor vehicle 3 on a highway. 4

[“Drive” means the exercise of physical control over the speed and direction

of a motor vehicle while it is in motion.] 5

[“Operate” means the physical manipulation or activation of any of the

controls of a motor vehicle necessary to put it in motion.] 6

2. The defendant had a prohibited alcohol concentration at the time the defendant

(drove) (operated) a motor vehicle.

Definition of “Prohibited Alcohol Concentration”

“Prohibited alcohol concentration” means 7

[.08 grams or more of alcohol in 210 liters of the person’s breath].

[.08 grams or more of alcohol in 100 milliliters of the person’s blood].

How to Use the Test Result Evidence

The law states that the alcohol concentration in a defendant’s (breath) (blood) (urine)

sample taken within three hours of (driving) (operating) a motor vehicle is evidence of

the defendant’s alcohol concentration at the time of the (driving) (operating). 8

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED 9 AND THERE IS NO ISSUE RELATING TO THE

DEFENDANT’S POSITION ON THE “BLOOD-ALCOHOL CURVE,” 10 THE

JURY SHOULD BE INSTRUCTED AS FOLLOWS:

[If you are satisfied beyond a reasonable doubt that there was [.08 grams or more of

alcohol in 100 milliliters of the defendant’s blood] [.08 grams or more of alcohol in 210

liters of the defendant’s breath] at the time the test was taken, you may find from that fact

alone that the defendant had a prohibited alcohol concentration at the time of the alleged

(driving) (operating), but you are not required to do so. You the jury are here to decide

this question on the basis of all the evidence in this case, and you should not find that the

defendant had a prohibited alcohol concentration at the time of the alleged (driving)

(operating), unless you are satisfied of that fact beyond a reasonable doubt.]

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED: 11

[The law recognizes that the testing device used in this case uses a scientifically

sound method of measuring the alcohol concentration of an individual. The State is not

required to prove the underlying scientific reliability of the method used by the testing

device. However, the State is required to establish that the testing device was in proper

working order and that it was correctly operated by a qualified person.]

Jury’s Decision

If you are satisfied beyond a reasonable doubt that both elements of this offense have

been proved, you should find the defendant guilty.

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