Massa, J.
At Dannie Pattison’s trial for operating a vehicle with an alcohol concentration equivalent of 0.08 or more, his jury was instructed to presume his ACE at the time of the offense based on a chemical test conducted within three of hours of his being stopped by police. Tracking the language of Indiana Code section 9-30-6-15(b), the instruction told the jury it “shall presume,” yet also stated, “the presumption is rebuttable.” We are asked to decide whether that instruction improperly relieved the State of its burden to prove each element beyond a reasonable doubt, amounting to fundamental error. Finding no error in the trial court’s instruction, we affirm Pattison’s conviction.
Facts and Procedural History
Sometime after midnight, Jonesboro Police Officer Justin Chambers noticed a white Cadillac driving along a county road without its taillights on. … While issuing a traffic citation for Pattison’s inoperable taillights, Officer Chambers observed Pattison’s watery eyes, slurred speech, and odor of alcohol. … about an hour and a half after Pattison was pulled over, his alcohol concentration equivalent was 0.10. Pattison was charged with operating a vehicle with an ACE of 0.08 or more. Ind. Code § 9-30-5-1(a).
At trial, the State admitted evidence of the chemical test results, and Chambers, as well as another responding officer, testified as to their observations during the stop. …
A jury found Pattison guilty as charged, a Class D felony due to a prior conviction, and the trial court sentenced him to three years.
On appeal, Pattison challenged the following jury instruction:
6. 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.
Tr. at 205; App. at 33. Although Pattison did not object to the instruction at trial, he argued below that it amounted to fundamental error because it unconstitutionally shifted the burden to him to disprove an element of the crime—his ACE at the time of the offense—in violation of the Due Process Clause. Pattison insisted the jury must be instructed that it is free to accept or reject the presumption.
A unanimous panel of our Court of Appeals agreed with Pattison and reversed his conviction, finding the instruction did not make clear the presumption was merely permissible. Pattison v. State, 47 N.E.3d 621, 628 (Ind. Ct. App. 2015). … The State also argued that, even if the instruction was erroneous, the Court of Appeals improperly “conflated the standards” for analyzing harmful versus fundamental errors. Pet. for Trans. at 14. We granted the State’s petition, thereby vacating the opinion below. Pattison v. State, 46 N.E.3d 445 (Ind. 2016) (table); Ind. Appellate Rule 58(A).
Standard of Review
Because instructing the jury is a matter within the sound discretion of the trial court, we will reverse a trial court’s decision to tender or reject a jury instruction only if there is an abuse of that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013). …
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The Trial Court’s Instruction Was Not Error.
Pattison argues Instruction 6 improperly shifted the burden of proof because it created a “mandatory presumption” by instructing the jury it “shall presume” an element of the crime: his alcohol concentration equivalent while driving. Appellant’s Br. at 10. …
The Due Process Clause prohibits the State from relying upon an evidentiary presumption that has the effect of relieving it of its burden to prove every essential element of a crime beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524 (1979); McCorker v. State, 797 N.E.2d 257, 263 (Ind. 2003). …
Here, Instruction 6 tells jurors they “shall” presume, App. at 33, making it a mandatory presumption. A mandatory presumption may be either conclusive or rebuttable: if it is conclusive, the presumption is satisfied once the State proves the predicate facts; if it is rebuttable, the defendant may produce evidence to persuade the jury to reject the presumption. Francis, 471 U.S. at 314 n.2. Instruction 6 explicitly tells jurors the presumption is rebuttable. …
We next assess the effect of the mandatory rebuttable presumption, asking: does the instruction effectively shift the burden from the State to the defendant to disprove an element of the crime? …
….
Instructing the jury as to a mandatory rebuttable presumption in a criminal case does not amount to automatic error; instead, such an instruction may be constitutionally sound so long as it maintains the State’s obligation to prove every element beyond a reasonable doubt. Francis, 471 U.S. at 314, 316. … By giving the State a three-hour window to perform and rely upon the certified examination, is its burden lifted? We determine the answer is no.
The presumption of Instruction 6 does not relieve the State of its obligation to prove Pattison’s ACE, but merely negates the need for live testimony explaining retrograde extrapolation as a method to estimate his ACE at the time of driving. …
….
Because the presumption is rebuttable, a defendant is free to present evidence in his defense. For instance, he could show he consumed alcohol after driving. Chilcutt, 544 N.E.2d at 858. Or, he could posit another theory, as Pattison did here, that the test results were due to his inhaler use, a supposition his jury heard and rejected.
Conclusion
Because Instruction 6 did not shift the State’s burden of proof, we see no error, let alone error so fundamental as to preclude a fair trial. We thus affirm.
Rush, C.J., and Rucker, David, and Slaughter, JJ., concur.