Wis JI-Criminal 2669

NOT RECOMMENDED FOR USE FOR CASES INVOLVING A

CHARGE OF A PAC OF MORE THAN 0.02 1

Description of the Charges

The first count in the criminal complaint 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 count in the criminal complaint 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 State

must prove every element of each offense charged beyond a reasonable doubt. 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 count charges a separate offense, and you must consider each one separately.

Definition of Count 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

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 Count 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 Count 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.

State's Burden of Proof

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

beyond a reasonable doubt that the following two elements were present.

Elements of Count 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

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). 11

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED 12 AND THERE IS NO ISSUE RELATING TO THE

DEFENDANT'S POSITION ON THE "BLOOD-ALCOHOL CURVE," 13 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 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 these questions on the basis of all the evidence in this

case, and you should not find 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, unless you

are satisfied of that fact beyond a reasonable doubt.]

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED: 14

[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 the defendant (drove) (operated) a

motor vehicle on a highway while under the influence of an intoxicant, you should find

the defendant guilty of Count 1.

If you are not so satisfied, you must find the defendant not guilty of Count 1.

If you are satisfied beyond a reasonable doubt 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 Count 2.

If you are not so satisfied, you must find the defendant not guilty of Count 2.