Wis JI-Criminal 2696

Statutory Definition of the Crime

The first count in the criminal complaint charges that the defendant operated a

motorboat while under the influence of an intoxicant to a degree which renders that

person incapable of safe motorboat operation in violation of § 30.681(1)(a) of the

Wisconsin Statutes.

The second count in the criminal complaint charges that the defendant operated a

motorboat while the defendant had a prohibited alcohol concentration in violation of

§ 30.681(1)(b)1. 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. 1

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. 2

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

Definition of Count 1 – Operating Under The Influence

Section 30.681(1)(a) of the Wisconsin Statutes is violated by one who operates a

motorboat while under the influence of an intoxicant to a degree which renders that

person incapable of safe motorboat operation.

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 operated a motorboat.

"Operate" means to control the speed or direction of a motorboat. 3

"Motorboat" means any boat equipped with propulsion machinery, whether

or not the machinery is the principal source of propulsion. 4

2. At the time the defendant operated a motorboat, the defendant was under the

influence of an intoxicant to a degree which rendered (him) (her) incapable of

safe motorboat operation.

Definition of "Under the Influence of an Intoxicant"

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

operate a motorboat was impaired because of consumption of an alcoholic

beverage. 5

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

motorboat.

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

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

safely control the motorboat be impaired.

Definition of Count 2 – Operating With A

Prohibited Alcohol Concentration

Section 30.681(1)(b)1. of the Wisconsin Statutes is violated by one who operates a

motorboat 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 operated a motorboat.

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

operated a motorboat.

"Prohibited alcohol concentration" means 6

[.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 operating a motorboat is evidence of the defendant's

alcohol concentration at the time of the operating. 7

WHERE TEST RESULTS SHOWING MORE THAN 0.04 BUT LESS THAN

0.08 GRAMS HAVE BEEN ADMITTED, THE EVIDENCE IS RELEVANT

BUT DOES NOT HAVE PRIMA FACIE EFFECT. SEE WIS JI-CRIMINAL

232. 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 was under the influence of an intoxicant at the time of the

alleged operating or that the defendant had a prohibited alcohol concentration at the time

of the alleged 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

operating or that the defendant had a prohibited alcohol concentration at the time of the

alleged 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: 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 the defendant operated a

motorboat 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 operated a

motorboat 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.