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Pilant v. State (06/24/2005) ap-1988
Pilant v. State (06/24/2005) ap-1988
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARK W. PILANT, )
) Court of Appeals No.A-8708
Appellant, ) Trial Court No. 3HO-03-148 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1988 June 24, 2005]
)
Appeal from the District Court, Third Judi
cial District, Homer, M. Francis Neville,
Judge.
Appearances: Brooke Browning, Assistant
Public Defender, Kenai, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Marilyn J. Kamm, Assistant
Attorney General, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Mark W. Pilant was arrested for driving while under the
influence. Following his arrest, Pilant submitted to a breath
test; this test showed that his blood alcohol level was .078
percent. At Pilants trial, the jurors were instructed that if
they concluded that the breath test was properly administered,
then they were allowed to infer that Pilants blood alcohol level
was at least equal to this test result .078 percent at the time
he was driving:
[If you find that the breath test was
administered] in substantial compliance with
the methods approved by the Department of
Public Safety, ... you may, but are not
required to, infer that the test results are
valid. You may also, but are not required
to, infer that [the] chemical test ...
result[ed] in a reading equal to or less than
[the defendants] actual blood-alcohol level
at the time of driving.
In this appeal, Pilant argues that
this instruction was flawed because it did
not explicitly tell the jurors that Pilants
blood alcohol level at the time he was
driving could have been higher than, equal
to, or lower than his breath test result.
But this was obvious. The challenged jury
instruction addresses a different (albeit
related) issue: As a matter of law, were the
jurors allowed to infer that Pilants blood
alcohol level had not increased since the
time he was stopped, and that therefore his
blood alcohol level at the time he was
driving was at least as high as his later
test result?
The answer to this question is yes.
In Doyle v. State, 633 P.2d 306, 310-11
(Alaska App. 1981), we held that, under AS
28.35.033(a), the result of a properly
administered breath test gives rise to a
presumption that is, a permissive and
rebuttable inference that the defendant had
an equivalent blood alcohol level at the time
of the offense (that is, at the time the
defendant was driving). The jury instruction
in Pilants case simply authorizes the jury to
draw this inference.
Pilant points out that, at his
trial, the State presented no expert
testimony on the issue of whether, or how
fast, a persons blood alcohol level might be
expected to fall after they take their last
drink, or how one might use the breath test
result to extrapolate backward in time to
derive a persons blood alcohol level at the
time of the offense (i.e., at the time of
their driving).
But as we explained in Doyle, one
of the obvious reasons [why the legislature
created the breath test presumption] is to
avoid the necessity of calling expert
witnesses in each case to establish by
extrapolation the blood alcohol content of
the defendant at the time of the alleged
offense. Id. at 311.
We further note that, in Kalmakoff
v. Anchorage, 715 P.2d 261 (Alaska App.
1986), we upheld a jury instruction similar
to the one that Pilant challenges in this
appeal. The jury in Kalmakoff was
instructed:
If you find that a breath examination
accurately established the defendants [blood]
alcohol content to be [.10 percent] or
greater, and if you find no other believable
evidence of his condition, then you may rely
solely on the test as a basis for finding
that the defendant was under the influence of
intoxicating liquor at the time charged.
However, if you do find that there is
other believable evidence showing that the
defendant may not have been under the
influence of intoxicating liquor at the time
charged then you must decide the issue based
on a careful consideration of all the facts
and circumstances in evidence bearing on the
defendants condition, no longer relying
exclusively on the results of the breath
test.
Kalmakoff, 715 P.2d at 262.
The defendant in Kalmakoff argued
that this wording created a mandatory
presumption that he was guilty if his breath
test result equaled or exceeded the legal
limit, and that the instruction thus shifted
the burden of persuasion or proof away from
the government and to the defendant. We
rejected these arguments:
In our view, [the challenged jury
instruction], when given a common sense
reading, does not create a mandatory
presumption. Rather, it establishes nothing
more than a permissive inference. In this
regard, the instruction substantially
complies with the requirements of Evidence
Rule 303(a)(1), which governs presumptions
against the accused in criminal cases.
Similarly, nothing in the plain language
of [the instruction] can be said to shift the
burden of proof or of persuasion to the
accused.
Id. at 262-63.
For these reasons, we conclude that
the jury instruction in Pilants case was
proper. The judgement of the district court
is AFFIRMED.
