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Presumption of Innocence or Presumption of Guilt?

By Andrew Mishlove on September 02, 2011


In Wisconsin, jurors are told the law in the form of published standard jury instructions. The judge reads these to the jury before they decide the case. These standard instruction are not actually the law. Rather, they are a summary of law written by an instruction committee - an instruction committee that is not elected and has no lawful authority. Even though they are not law, the instructions, nevertheless, have the impact of law in most cases.

There is a HUGE problem with the standard instruction in drunk driving cases: It reads:

"The law recognizes that the testing device used in this case uses a scientifically sound method of measuring the alcohol concentration of an individual. The state is not required to prove the underlying scientific reliability of the method used by the testing device."
This instruction is illegal and unconstitutional. It violates the most basic, core principle of our criminal justice system: the presumption of innocence.

How can it be that the state is not required to prove that their alcohol testing is reliable? Have we been reduced to trial by machine?

Amazingly, there is no proper legal foundation for the instruction. It is based on the Trailer Service case, which has to do with the reliability of the scales used to weigh trucks. Trailer Service was not a criminal case, so it has no application to criminal drunk driving law.

Also amazing, this illegal instruction is given to jurors in drunk driving cases in Wisconsin every day, and it goes unchallenged. Why? I do not know, but at our law firm, we are challenging and will continue to challenge this instruction in every case.

Frankly, I do not expect to win at the lower court levels. But, we will speak the truth to power. I expect that we will argue this in federal court. I also expect that we will win.

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