State v. White

421 A.2d 1283, 139 Vt. 23, 1980 Vt. LEXIS 1383

Opinion

Per Curiam.

This is an appeal from a conviction for operating a motor vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201 (a) (2). Evidence of a blood-alcohol content of .16% by weight at the time of testing was introduced, and related back to the time of operation. This triggered the operation of 23 V.S.A. § 1204(a) (3), which allows the jury to find that the defendant was under the influence at the time of operation upon proof of .10% blood-alcohol con tent by weight at that time. State v. Dacey, 138 Vt. 491, 418 A.2d 856 (1980). The court, however, erred in its instructions to the jury by giving § 1204(a) (3) the effect of a burden-shifting presumption, rather than a permissive inference. Accordingly, our decision in State v. Dacey, supra, requires reversal.

Because we are reversing, the other claims of error raised by the defendant need not be addressed.

Reversed and remanded.