Wis JI-Criminal 2660C

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 highway 1 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] [three] 3

elements were present.

Elements of the Crime That the State Must Prove

1. The defendant (drove) (operated) a motor vehicle 4 on a highway. 5

Definition of "Drive" or "Operate"

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

of a motor vehicle while it is in motion.] 6

["Operate" means the physical manipulation or activation of any of the

controls of a motor vehicle necessary to put it in motion.] 7

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 8

[more than .02 grams of alcohol in 210 liters of the person's breath].

[more than .02 grams of alcohol in 100 milliliters of the person's blood].

NOTE: THE DEFENDANT'S ADMISSION OF THREE OR MORE PRIOR

CONVICTIONS DISPENSES WITH THE NEED FOR PROOF OF THE

FOLLOWING ELEMENT. IF THERE IS AN ADMISSION, DO NOT

INSTRUCT ON THIS ELEMENT AND PROCEED TO THE PARAGRAPH

CAPTIONED "HOW TO USE THE TEST RESULT EVIDENCE." 9

[3. The defendant had three or more convictions, suspensions, or revocations, as

counted under § 343.307(1).] 10

IF THE THIRD ELEMENT IS INCLUDED AND IF REQUESTED BY

THE DEFENDANT, THE FOLLOWING CAUTIONARY

INSTRUCTION SHOULD BE GIVEN: 11

[Evidence has been received that the defendant had prior convictions,

suspensions, or revocations. This evidence was received as relevant to the status

of the defendant's driving record, which is an issue in this case. It must not be

used for any other purpose and, particularly, you should bear in mind that

conviction, suspension, or revocation at some previous time is not proof that the

defendant drove or operated a motor vehicle with a prohibited alcohol

concentration on this occasion.]

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). 12

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED: 13

[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 all the 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.