Wis JI-Criminal 2668

Description of the Charges

The first citation in this case charges that the defendant drove or operated a motor

vehicle on a highway while under the influence of an intoxicant in violation of

§ 346.63(1)(a) of the Wisconsin Statutes.

The second citation in this case charges that the defendant drove or operated a motor

vehicle on a highway while the defendant had a prohibited alcohol concentration in

violation of § 346.63(1)(b) of the Wisconsin Statutes.

To these charges, the defendant has entered pleas of not guilty which means the

(identify prosecuting agency 1 must prove every element of each offense charged to a

reasonable certainty by evidence which is clear, satisfactory, and convincing. 2

It is for you to determine whether the defendant is guilty of one, both, or neither of

the offenses charged. You must make a finding of guilty or not guilty for each offense

charged. 3

Each citation charges a separate offense, and you must consider each one separately.

Definition of Citation 1 – Operating Under The Influence

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

operates a motor vehicle on a highway while under the influence of an intoxicant. 4

Burden of Proof

Before you may find the defendant guilty of this offense, the (identify prosecuting

agency must satisfy you to a reasonable certainty by evidence which is clear,

satisfactory, and convincing that the following two elements were present.

Elements of Citation 1 – Operating Under The Influence

1. The defendant (drove) (operated) a motor vehicle 5 on a highway. 6

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

of a motor vehicle while it is in motion.] 7

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

controls of a motor vehicle necessary to put it in motion.] 8

2. The defendant was under the influence of an intoxicant at the time the defendant

(drove) (operated) a motor vehicle.

Definition of "Under the Influence of an Intoxicant"

"Under the influence of an intoxicant" means that the defendant's ability to

operate a vehicle was impaired because of consumption of an alcoholic

beverage. 9

Not every person who has consumed alcoholic beverages is "under the

influence" as that term is used here. What must be established is that the person

has consumed a sufficient amount of alcohol to cause the person to be less able

to exercise the clear judgment and steady hand necessary to handle and control a

motor vehicle.

It is not required that impaired ability to operate be demonstrated by

particular acts of unsafe driving. What is required is that the person's ability to

safely control the vehicle be impaired.

Definition of Citation 2 – Operating With A

Prohibited Alcohol Concentration

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

operates a motor vehicle on a highway with a prohibited alcohol concentration.

Burden of Proof

Before you may find the defendant guilty of this offense, the (identify prosecuting

agency must satisfy you to a reasonable certainty by evidence which is clear,

satisfactory, and convincing that the following two elements were present.

Elements of Citation 2 – Prohibited Alcohol Concentration

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

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

(drove) (operated) a motor vehicle.

"Prohibited alcohol concentration" means 10

[.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

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED 11 AND THERE IS NO ISSUE RELATING TO THE

DEFENDANT'S POSITION ON THE "BLOOD-ALCOHOL CURVE," 12 THE

JURY SHOULD BE INSTRUCTED AS FOLLOWS:

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). If you are

satisfied 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 was under the

influence of an intoxicant at the time of the alleged (driving) (operating) or that the

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

(operating), or both, 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 to a reasonable certainty by evidence

which is clear, satisfactory, and convincing.

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 (identify

prosecuting agency is not required to prove the underlying scientific reliability of the

method used by the testing device. However, the (identify prosecuting agency 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 to a reasonable certainty by evidence which is clear, satisfactory,

and convincing that the defendant (drove) (operated) a motor vehicle on a highway while

under the influence of an intoxicant, you should find the defendant guilty of the offense

charged in Citation 1.

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

charged in Citation 1.

If you are satisfied to a reasonable certainty by evidence which is clear, satisfactory,

and convincing that the defendant (drove) (operated) a motor vehicle on a highway while

the defendant had a prohibited alcohol concentration, you should find the defendant

guilty of the offense charged in Citation 2.

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

charged in Citation 2.