Dannie Carl Pattison appeals his conviction of Class D felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08% or more with a prior conviction within the last five years.1 Pattison asserts a jury instruction included a constitutionally impermissible evidentiary presumption that shifted the burden of proof to him on an element of the offense.
We reverse.
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Pattison did not object at trial to the jury instruction now challenged. An issue is waived for appellate review unless a party objected to the alleged error at trial. Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). Despite waiver, relief remains available under a narrow exception for fundamental error. Id. A fundamental error is one that “constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).
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Because Pattison’s test was administered within the permissible time frame and his BAC was .10%, the trial court gave the following jury instruction:
Rebuttable Presumption
If in a prosecution for operating a vehicle with at least eight- hundredths (0.08) gram of alcohol in 210 liters of the breath, if evidence establishes that:
- a chemical test was performed within three (3) hours after the law enforcement officer had probable cause to believe the person committed the crime; and
- the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per two hundred ten (210) liters of the person’s breath;
the jury shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per two hundred ten (210) liters of the person’s breath at the time the person operated the vehicle. However, the presumption is rebuttable.
[Record citations omitted throughout.] Pattison argues the presumption created in that instruction unconstitutionally shifted the burden of proof to him.
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As the instruction given to Pattison’s jury is essentially the same instruction given in Hall [], that instruction was erroneous.4 See Sturgeon, 575 N.E.2d at 681 (instruction tracking statutory language created constitutional error); Hall, 560 N.E.2d at 564 (“instruction which embraces the statute must clearly advise the jury that the presumption is only permissive”).
[Footnote 4: … Unlike the constitutionally infirm instruction that was given to the jury, the pattern jury instruction on this point of law at the time of Pattison’s trial explained: “It creates an inference that the Defendant was sufficiently under the influence of alcohol to lessen Defendant’s driving ability so as to be intoxicated within the meaning of the law. This inference is not conclusive. You may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.117. In 2014, the instruction was updated to read: “[Y]ou may infer that the Defendant was sufficiently under the influence of alcohol to lessen Defendant’s driving ability so as to be intoxicated within the meaning of the law. You are not required to make this inference. You may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.4240. As such, the Pattern Jury Instruction was, and is, a more constitutionally appropriate statement of the inference allowed.]
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Nevertheless, as the State contends, an instruction that impermissibly shifts the burden of proof “does not . . . automatically require the reversal of an otherwise valid conviction” because even instructions that improperly shift the burden of proof can be harmless. Id. Instructional error does “not require reversal of a conviction where, after review of the entire record, the reviewing court concludes the error was harmless beyond a reasonable doubt.” Collins, 567 N.E.2d at 801.
Unlike Regan, 950 N.E.2d 640, in which the defendant was charged with a version of driving while intoxicated that permitted the jury to find the defendant guilty based on his physical characteristics and behavior, Pattison was charged only with driving while intoxicated with an ACE over .08%. As Pattison did not challenge that he was driving, the presumption created by the erroneous instruction shifted the burden of proof to Pattison on the only contested element in the case. In this situation, we cannot say the instructional error was harmless. See, e.g., Sturgeon, 575 N.E.2d at 683 (unable to hold error harmless where evidence of Sturgeon’s “appearance of intoxication” was inconclusive and conflicting). Accordingly, we must reverse.
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Reversed.
Robb, J., and Mathias, J. concur.