3/4/16 Arizona Court of Appeals says DUI jury instruction stating the breath test machine was working properly before and after the defendant’s tests was not improper.
In a jury trial the judge is required to instruct the jury on the law and evidence they must consider. These instructions may be given at the beginning of the case and must be given at the conclusion of the evidence, before the jury retires to decide the case.
A jury instruction must be based on the law and the evidence produced at trial. Also the Arizona constitution is very clear that, in a jury trial, the jury decides the facts and not the judge, therefore it is improper for the judge to attempt to influence the jury’s decision on the facts. The concept is called, ”Invading the Province of the Jury.” This is an important concept which separates Arizona from countries such as Britain where the judge can influence the jury’s decision by commenting on the evidence.
State v. Peraza was a DUI jury trial. The defendant’s alcohol level was tested on a breath testing device. In the closing jury instructions the judge told the jury: The State has introduced evidence of periodic maintenance through records which show that the quantitative breath testing device was in proper operating condition at a time before and after the test. Such records are prima facie evidence that the device was in the proper condition at the time of the test. The jury instruction was based on A.R.S. § 28-1323(A).
The defendant was convicted of DUI and appealed to the court of appeals. The defendant made several arguments on appeal as to why the instruction was improper. First, that by telling the jury the records show the device was working properly it unconstitutionally shifted the burden of proof from the State to the defendant. It is the State’s burden to prove the device was working properly, and not the defendant’s burden to prove it was not. The court of appeals said the instruction was a permissive presumption of law and as such did not shift the burden of proof.
Mandatory presumptions which require a jury to make a particular finding are unconstitutional however permissive presumptions which are ones which the jury may or may not use are constitutional. The court of appeals went on to say the instruction at issue did not require the jury to reach any specific conclusions and therefore did not shift the burden of persuasion to the defendant on a crucial element of the defense.
Second, the defendant argued that the instruction in effect had the judge telling the jury the machine was working properly, and as such was an unconstitutional judicial comment on the evidence. The court of appeals said it was not an unconstitutional judicial comment on the evidence because the instruction was simply a statement of Arizona law, and the jury was instructed they could disregard it. The court of appeals also stated given the facts in the case, which the court described, the defendant would have been found guilty even it that instruction had not been given. The court of appeals therefore rejected the defendant’s arguments and affirmed the conviction.
http://www.apltwo.ct.state.az.us/Decisions/CR20150022Opinion.pdf
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