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  • WisBar News
    August 29, 2016

    Appeals Court Reverses PAC Conviction, Says Jury Must Decide

    Joe Forward

    shot glass with keys and gavel

    Aug. 29, 2016 – A state appeals court recently reversed a man’s conviction for prohibited alcohol concentration (PAC), concluding that the trial judge could not decide the issue on directed verdict. That is, the jury was required to decide.

    Police found Jonathan Van Ark behind the wheel of a vehicle that was parked and not running. The vehicle’s owner was in the passenger seat. Police believed that Van Ark was impaired, and Van Ark admitted that he drove to that location minutes earlier.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Police arrested Van Ark for operating while intoxicated (OWI) after he failed a field sobriety test, and was transported to the hospital for a blood draw, which revealed a blood alcohol content (BAC) almost triple the legal limit. He was then charged with PAC.

    Ultimately, a jury trial was held. A medical technologist testified about the time and date of the blood draw and his procedures for drawing blood. A state lab chemist also testified, describing her qualifications for analyzing blood for alcohol. She said the test results were accurate to a reasonable degree of scientific certainty.

    The state moved for a directed verdict on both the OWI and PAC charges, which removes the case from the jury when the evidence allows only one reasonable verdict.

    The court denied the motion on the OWI charge, noting Van Ark disputed his perceived impairment at arrest, but granted the motion for directed verdict on the PAC charge.

    In Oconto County v. Van Ark, 2015AP1415 (Aug. 23, 2016), Appeals Court Judge Mark Seidl reversed, concluding that a jury was required to decide the PAC issue.

    Seidl noted a pattern jury instruction that says the jury “may find” that a defendant had a prohibited alcohol concentration if the jury “is satisfied to a reasonable certainty by evidence which is clear, satisfactory, and convincing” that the defendant’s blood contained 0.08 grams or more of alcohol in 100 milliliters of the defendant’s blood.”

    However, the jury instruction also says that the jury “is not required to do so.” Judge Seidl ruled that this permissive language allows the jury to decide, not the judge.

    “[A]lthough the jury heard Weber’s uncontroverted testimony concerning Van Ark’s BAC, a jury is not bound by the testimony of an expert, even if uncontroverted,” Judge Seidl wrote. “Accordingly, the court erred by taking the case from the jury.”

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