Brown v. State

BARBERA, J. This appeal presents us with the opportunity to decide, among other matters, the constitutional effect of the evidentiary “presumptions” concerning blood alcohol concentration, set forth in Maryland Code (2002 Repl.Vol., 2004 Cum Supp.), § 10-307 of the Courts and Judicial Proceedings Article (“CJ”). CJ § 10-307 provides, inter alia, that a specified level of alcohol concentration in an accused’s breath or blood “shall be prima facie evidence” that the accused was driving while impaired by alcohol or under the influence of alcohol. The question we decide is whether that evidentiary device constitutes a mandatory presumption that violates the accused’s due process right to be convicted only upon the State’s proof of every element of the offense beyond a reasonable doubt, or whether, instead, the device is merely a permissive inference that allows, but does not require, the trier of fact to find the existence of an element that the State must prove. We shall hold that CJ § 10-307 sets forth a permissive inference and therefore does not offend due process. ⁴⁹⁹ Appellant Michael E. Brown stands convicted of driving while under the influence of alcohol, in violation of Maryland Code (1977, 2002 RepLVoL, 2004 Cum.Supp.), § 21-902(a)(l) of the Transportation Article (“Transp.”). 1 He presents eight questions for our consideration, which we have consolidated and reordered: I. Do the evidentiary presumptions set forth in CJ § 10-307 comport with due process?

II

Is CJ § 10-303(a)(3), which permits the use of a breath test within a certain time frame after being “apprehended,” unconstitutionally vague?

III

Did the trial court correctly conclude that the police officer performed a lawful traffic stop of Mr. Brown?

IV

Did the trial court correctly conclude that the field sobriety tests conducted by the police officer comported with the Fourth Amendment and Article 26 of the Maryland Declaration of Rights? V. Was the police officer who administered the field sobriety tests required to inform Mr. Brown of his Miranda rights under the Fifth Amendment and Article 22 of the Maryland Declaration of Rights? For the reasons that follow, we affirm the judgment. FACTS AND PROCEEDINGS On the morning of May 15, 2005, at approximately 2:20 a.m., a Jeep Grand Cherokee collided with the rear of a vehicle that was stopped at a red traffic signal in a northbound lane at the intersection of 48th Street and Coastal Highway, in Ocean City, Maryland.

Also stopped at the intersection, but in a ⁵⁰⁰ southbound lane of Coastal Highway, was a marked police vehicle in which Officer Douglas Smith, a member of the traffic safety unit of the Ocean City Police Department, and Officer Dagstani were riding. Officer Smith, who was driving the police vehicle, saw the collision and heard it cause a “loud” noise. He watched the drivers of the two vehicles leave their vehicles and speak briefly, then return to their vehicles when the light turned green and continue north on Coastal Highway. Officer Smith made a U-turn and followed the two vehicles as they headed north.

The Grand Cherokee turned east on 51st Street, while the other vehicle continued northbound. Officer Smith immediately activated his emergency lights and stopped the other vehicle at 52nd Street and Coastal Highway. Officer Smith left Officer Dagstani to speak with the driver of that vehicle. Officer Smith then turned off his emergency lights and drove back to 51st Street, where he found the Grand Cherokee parked with the engine still running.

As Officer Smith pulled behind the Grand Cherokee, the driver, Mr. Brown, turned off its engine. Officer Smith got out of his vehicle and approached the Grand Cherokee, asked Mr. Brown for his license and registration, and began questioning him about the collision. At that time, Officer Smith noted the “strong odor of an alcoholic beverage on [Mr. Brown’s] breath and person,” and saw that his “eyes were glassy and bloodshot.” Evidently, at some point during that exchange, Mr. Brown handed Officer Smith his identification card, but not the vehicle’s registration. When asked again for the registration, Mr. Brown handed Officer Smith his insurance card.

Officer Smith returned the card to Mr. Brown and again asked him for the registration card. Officer Smith noticed that, as Mr. Brown was “flipping through papers, he had passed over his registration card a couple times.” Sometime during the stop (it is not clear from the record precisely when), Officer Smith attempted to run a license check but received no response from the Delaware Motor Vehicle Administration. He asked Mr. Brown the status of ⁵⁰¹ his license and Mr. Brown stated that “he had lost his license for a DWI” two years prior. Also sometime during the stop, Officer Dagstani radioed Officer Smith to advise that the driver of the other vehicle did not wish to file an accident report.

Officer Smith asked Mr. Brown to exit the vehicle. Mr. Brown “staggered out of the vehicle” whereupon Officer Smith asked him about his consumption of alcohol during that evening. He responded that “he had two mixed alcoholic beverages while at Seacrets,” a bar located at 49th Street in Ocean City. Mr. Brown told Officer Smith that he had gone to Seacrets at 10:30 p.m. and had his last drink at 1:00 a.m.

Based upon his observations, Officer Smith administered several field sobriety tests. He asked Mr. Brown to count backward from seventy-five to fifty-seven and to recite the alphabet from “D to T.” Officer Smith noted that Mr. Brown’s speech was slurred as he performed the latter test. Officer Smith then administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Officer Smith found that Mr. Brown displayed a “lack of smooth pursuit in both his left and right eye,” was unable to maintain heel-to-toe position, and was unable to follow all of the instructions.

Officer Smith then placed Mr. Brown under arrest for driving under the influence of alcohol. He was transported to the police station on 65th Street and Coastal Highway, where he was advised of his chemical test rights under form DR-15. 2 He agreed to take a breathalyzer test, the results of which showed his blood alcohol concentration (“BAC”) to be 0.18 at the time of testing. The record does not reflect when the test was conducted. Before trial, Mr. Brown filed a motion to suppress the evidence that the police obtained as a result of the stop.

He argued that there were no articulable facts to support the ⁵⁰² stop; the field sobriety tests were unlawful because (1) the officer did not have probable cause to believe that he had operated the motor vehicle while under the influence or impaired by alcohol and (2) he was not advised of and did not waive his Miranda 3 rights; and his arrest was not supported by probable cause. 4 Because the case proceeded as a bench trial, the court took evidence on the motion to suppress during the State’s case in chief. Upon hearing Officer Smith’s testimony, the substance of which we have recounted above, the court heard Mr. Brown’s argument on the motion and denied it. The court ruled that the initial stop was supported not merely by reasonable suspicion but by full probable cause that Mr. Brown had committed one or more traffic offenses. The court ruled, in pertinent part: Well, there’s more than an abundance of probable cause for him to stop this vehicle.

The officer saw the accident occur. Whether the other person that was involved, the other—the other person in the other vehicle that was involved wanted to pursue it or not civilly has no bearing whatsoever. It could have some bearing, but the fact that he didn’t wouldn’t preclude the officer from stopping the vehicle. He saw the accident happen.

He certainly would have charged him with numerous charges including negligent driving, failure to reduce speed to avoid a collision. So he, certainly on those grounds, had the reason to approach him. And the officer, testified that he had his lights on. The— your client pulled off the highway onto a side street once the officer put his lights on.

And he’d just had an accident at ⁵⁰³ the time that the bars are closing, so he was concerned about whether in fact he’d had too much to drink. So there’s certainly probable cause based on those facts also. The court also found that “there was more than sufficient probable cause for ... the officer to ask him to do the [field sobriety] tests, and upon his performance on the tests, there was probable cause to arrest.” Finally, with respect to Mr. Brown’s claim that Miranda warnings were required to be given and the rights thereunder waived before the field sobriety tests could be conducted, the court found that Officer Smith was “performing a traffic investigation” and “there’s an abundance of authority that he does have the right to ask him questions without Miranda warnings.” Also before trial, Mr. Brown filed a “Motion in Limine to Preclude the Government From Relying on Unconstitutional Evidentiary Presumption Contained in Courts and Judicial Proceedings Article § 10-307.” He argued that the statute allowed the State to rely upon evidentiary presumptions that relieved the State of its burden to prove every element of the offense beyond a reasonable doubt, in violation of due process. He also challenged CJ § 10—303(a)(2), which provides that, “[f]or the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended.” (Emphasis added).

He argues that the italicized portion is unconstitutionally vague. At trial the State sought to elicit evidence concerning the breathalyzer test. Mr. Brown objected and asked the court to rule on the motion in limine. The court asked defense counsel the grounds for the motion, to which he initially replied, “well, for the reasons [ ] stated” in the written motion.

Counsel then restated the due process argument concerning CJ § 10-307, but he made no mention of the vagueness challenge to CJ § 10-303. The court overruled Mr. Brown’s objection and denied the motion without comment. The State then called Officer Green, a certified intoximeter operator with the Ocean City ⁵⁰⁴ Police Department, who testified concerning his administration of the breathalyzer test to Mr. Brown. Through Officer Green, the State offered into evidence the written results of the test, showing that Mr. Brown’s blood alcohol concentration at the time of testing was 0.18.

The court found Mr. Brown guilty of driving under the influence of alcohol, driving under the influence of alcohol per se, and driving while impaired and proceeded immediately to sentencing. The court merged the latter two convictions into the former, and sentenced Mr. Brown to one year of incarceration, all but 60 days suspended, followed by two years of supervised probation. The court also imposed a fine of $500. This appeal followed.

DISCUSSION I. and II. The Constitutional Challenges to CJ §§ 10-303 and 10-307 Mr. Brown mounts constitutional attacks upon CJ § 10-303(a)(2) and CJ § 10-307, arguing that § 10-303(a)(2) is unconstitutionally vague, and that § 10-307 permits the State to rely upon evidentiary presumptions that relieve the State of its burden of proof. The State responds that Mr. Brown has preserved for our review only the second of these challenges and both challenges fail on their merits. Before we address the parties’ contentions we recognize several principles relevant to consideration of any challenge to the constitutionality of a statute.

First, a statute is presumed to be valid and the courts “are reluctant to find a statute unconstitutional if, ‘by any construction, it can be sustained.’ ” Galloway v. State, 365 Md. 599, 610-11 , 781 A.2d 851 (2001) cert, denied, 535 U.S. 990 , 122 S.Ct. 1547 , 152 L.Ed.2d 472 (2002) (citations omitted). Stated differently, “if a statute is susceptible of one construction that is constitutional and one that is unconstitutional, the statute should be construed as constitutional.” State v. Smith, 374 Md. 527, 565 , ⁵⁰⁵ 823 A.2d 664 (2003). Second, “if ... a statute violates a ‘mandatory provision’ of the Constitution, we are required to declare such an act unconstitutional and void.” Galloway, 365 Md. at 611 , 781 A.2d 851 . Therefore, if a statute is void for vagueness or otherwise offends due process, “then the statute is unconstitutional.” Id.

Third, “[T]he party attacking the statute has the burden of establishing its unconstitutionality.” Id. With those principles in mind, we turn to the parties’ arguments, beginning with Mr. Brown’s challenge to CJ § 10-307. Mr. Brown argues that CJ § 10-307 establishes mandatory presumptions that violate the Due Process Clause of the Fourteenth Amendment. 5 Section 10-307 is entitled “Results of Analysis and Presumptions” and provides: (a) In general.—(1) In any criminal, juvenile, or civil proceeding in which a person is alleged to have committed an act that would constitute a violation of ... § 21-902 of the Transportation Article, the amount of alcohol in the person’s breath or blood shown by analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsections (b) through (g) of this section.... (b) Alcohol concentration of 0.05 or less.—If at the time of testing a person has an alcohol concentration of 0.05 or less, as determined by an analysis of the person’s blood or breath, it shall be presumed that the person was not under the influence of alcohol and that the person was not driving while impaired by alcohol.

(c) Alcohol concentration of more than 0.05 but less than .07—If at the time of testing a person has an alcohol concentration of more than 0.05 but less than 0.07, as determined by an analysis of the person’s blood or breath, this fact may not give rise to any presumption that the person was or was not under the influence of alcohol or that ⁵⁰⁶ the person was or was not driving while impaired by alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not driving while under the influence of alcohol or driving while impaired by alcohol. (d) Prima facie evidence of impairment.—If at the time of testing a person has an alcohol concentration of at least 0.07 but less than 0.08, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the person was driving while impaired by alcohol. (e) Prima facie evidence of alcohol in blood.—If at the time of testing a person has an alcohol concentration of 0.02 or more, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the person was driving with alcohol in the person’s blood. (f) Prima facie evidence of violation of § 16-113 of the Transportation Article.—If at the time of testing a person has an alcohol concentration of 0.02 or more, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the person was driving in violation of an alcohol restriction under § 16-113 of the Transportation Article.

(g) Under the influence of alcohol per se.—If at the time of testing a person has an alcohol concentration of 0.08 or more, as determined by an analysis of the person’s blood or breath, the person shall be considered under the influence of alcohol per se as defined in § 11-127.1 of the Transportation Article. The Due Process Clause of the Fourteenth Amendment requires the prosecution to prove beyond a reasonable doubt every element necessary to establish the crime charged. Francis v. Franklin, 471 U.S. 307, 313 , 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985); In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970) (stating that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”). The State is ⁵⁰⁷ not permitted to shift the burden of proof to the defendant of any element of an offense, but the State may use inferences and presumptions that allow the trier of fact to determine the existence of an element of the crime from the existence of one or more “evidentiary” or “basic” facts.

County Court of Ulster County v. Allen, 442 U.S. 140, 156 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979). The permissive inference or presumption is a common evidentiary device that allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecution of the basic fact, and that places no burden of any kind on the defendant. Id. at 157 , 99 S.Ct. 2213 . “In that situation the basic fact may constitute prima facie evidence of the elemental fact.” Id. Because a permissive presumption allows the trier of fact to accept or reject the inference, due process is offended only when, “under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” Id.; see also Francis, 471 U.S. at 314-15 , 105 S.Ct. 1965 (stating that a permissive inference violates the Due Process Clause only “if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury”).

A mandatory presumption, by contrast, instructs the finder of fact that it must infer the presumed fact if the State proves certain predicate facts. Francis, 471 U.S. at 314, 105 S.Ct. 1965 . A mandatory presumption may be either conclusive or rebuttable. Sandstrom v. Montana, 442 U.S. 510, 517-18 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979).

A mandatory conclusive presumption “removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption.” Francis, 471 U.S. at 314 n. 2, 105 S.Ct. 1965 . A mandatory rebuttable presumption does not remove the presumed element from the case but nevertheless requires the trier of fact to find the presumed element unless the defendant persuades the trier of fact that such a finding is unwarranted. Id. If such a presumption relieves the State of the burden of persuasion on an element of the offense, it ⁵⁰⁸ violates due process.

Id. at 314 , 105 S.Ct. 1965 . The Allen Court has said the following concerning mandatory presumptions: A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the “no reasonable doubt” burden but also the placement of that burden; it tells the trier that he or she must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide.

To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases. Allen, 442 U.S. at 157-59 , 99 S.Ct. 2213 (citations and footnotes omitted). Mr. Brown argues that the evidentiary presumptions in CJ § 10-307 are impermissible mandatory presumptions and therefore, the statute is unconstitutional on its face. One difficulty he faces in advancing a facial challenge to CJ § 10-307 is that the challenge runs afoul of the principle that “[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.” Allen, 442 U.S. at 154-55 , 99 S.Ct. 2213 .

Therefore, “[a]s a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” Id. at 155 , 99 S.Ct. 2213 (citing Broadrick v. Oklahoma, 413 U.S. 601, 610 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)). Mr. Brown’s case was tried to the court; consequently, we do not have before us a case like Allen, Sandstrom, or ⁵⁰⁹ Francis, in each of which the issue to be decided was whether a jury instruction based on an evidentiary presumption was couched in language that created an impermissible mandatory presumption. The Supreme Court made clear in each of those cases that the way the jury is instructed concerning a statutory evidentiary presumption is often dispositive of the constitutional challenge. See Allen, 442 U.S. at 162-63 , 99 S.Ct. 2213 ; Sandstrom, 442 U.S. at 524 , 99 S.Ct. 2450 ; Francis, 471 U.S. at 317-18 , 105 S.Ct. 1965 .

The Supreme Court said in Allen , for example, that, “[i]n deciding what type of inference or presumption is involved in a case, the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it.” 442 U.S. at 158 n. 16, 99 S.Ct. 2213 . The Allen Court criticized the United States Court of Appeals for the Second Circuit because that court analyzed the facial constitutionality of New York’s statutory presumption that presence of a firearm in an automobile is evidence of its illegal possession by all occupants, without examining how the jury was instructed on the presumption. Id. at 155-56, 160 , 99 S.Ct. 2213 . The Allen Court looked to the jury instruction that was given concerning the statutory presumption and concluded that it was framed in such a way as not to force the jury to accept the presumption.

Id. at 160-61 , 99 S.Ct. 2213 . The Court further noted that the presumption was “entirely rational,” given all the circumstances of the case, and therefore, as applied to the accused in that case, the presumption did not offend due process. Id. at 164-65 , 99 S.Ct. 2213 . We have said that Mr. Brown was not tried by a jury, but by the court.

It is a rale of appellate review that a trial judge is presumed to know the law and apply it properly. State v. Chaney, 375 Md. 168, 180 , 825 A.2d 452 (2003). We therefore presume that the trial judge in this case knew that he could, but was not required to, infer from the breathalyzer results that Mr. Brown was under the influence of alcohol at the time he was observed driving the vehicle. Indeed, we ⁵¹⁰ know from the judge’s ruling that he did not find Mr. Brown guilty of the alcohol-related driving offenses based solely on the breathalyzer results.

The judge ruled that he found Mr. Brown guilty of driving under the influence of alcohol based on both his performance on the field sobriety tests and the results of the breathalyzer. Certainly, then, as applied to Mr. Brown, CJ § 10-307 presents no due process concerns. The test results showed that, at the time of testing, Mr. Brown had a BAC of 0.18. The judge could rationally infer from that fact, and the other facts before him, that Mr. Brown was driving while under the influence of alcohol at the time alleged.

Mr. Brown cannot successfully argue, then, that the evidentiary “presumption” contained in CJ § 10-307(e) was applied against him in an unconstitutional manner. See Allen, 442 U.S. at 163 , 99 S.Ct. 2213 . Mr. Brown, of course, asks us to review CJ § 10-307 for facial validity. We shall put aside the concerns we have about his standing to bring that challenge, because the State never asserted lack of standing.

We shall assume for purposes of this opinion that Mr. Brown can properly challenge CJ § 10-307 on its face. The challenge fails, nevertheless. We begin by noting that, although neither the Court of Appeals nor this Court has addressed this issue directly, we have commented in dicta that breathalyzer readings do not give rise to an irrebuttable presumption of intoxication. See Cameron v. State, 102 Md.App. 600 , 611 n. 2, 650 A.2d 1376 (1994).

And, we have described CJ § 10-307 as setting forth a statutory “inference” of driving while impaired or under the influence of alcohol. Briscoe v. State, 60 Md.App. 42, 45 , 479 A.2d 1385 , cert. denied, 302 Md. 8 , 485 A.2d 249 (1984). Moreover, one federal district judge has concluded that the evidentiary presumptions found in CJ § 10-307 “permit the trier of fact to draw certain permissible inferences, which inferences the trier of fact may accept or reject; and otherwise give them whatever weight the trier of fact may deem appropriate along with all of the other evidence under construction.” United States v. Sauls, 981 F.Supp. 909 , 917-18 ⁵¹¹ (D.Md.1997). Furthermore, two notable Maryland evidence commentators have described the statutory “presumptions” in C J § 10-807 as merely giving rise to a permissive inference of driving under the influence of or impaired by alcohol. 6 See Joseph F. Murphy Jr., Maryland Evidence Handbook, § 404, at 120-21 (3d. ed.1999); Lynn McLain, Maryland Evidence, § 303:4 at 468 (2001).

CJ § 10-307 is constitutional by application of the principle that we avoid construing a statute as unconstitutional, “if, ‘by any construction, it can be sustained.’ ” Galloway, 365 Md. at 611 , 781 A.2d 851 . The statute can be read to create a permissive inference that allows, but does not require, the trier of fact to find the defendant was driving under the influence of alcohol or impaired by alcohol. See Sauls, 981 F.Supp. at 917-18 ; Briscoe, 60 Md.App. at 45 , 479 A.2d 1385 . So construed, the statute does not shift to the defendant either a burden of production or of persuasion that the defendant was not driving while under the influence of alcohol or impaired by alcohol.

Indeed, the parties have not directed us to a single statute from another state that is similar to CJ § 10-307 and has been found to be unconstitutional on its face; certainly, we have found none. To the contrary, courts in our sister jurisdictions are in accord that similar statutory evidentiary presumptions concerning blood alcohol content are constitutional. A Florida statute with language similar to CJ § 10-307 has been construed as a permissive inference. See Fla.

Stat. § 316.1934 (2) (1985). Much like CJ § 10-307(b) and (c), the Florida statute provides that a certain low BAC carries a presumption that the accused was not driving while under the influence of or impaired by alcohol, and a slightly higher BAC permits no presumption to be drawn one way or another. See § 316.1934(a), (b). By contrast, subsection (c) of the Florida ⁵¹² statute provides in pertinent part: “If there was at that time [of testing] 0.10 percent or more by weight of alcohol in the person’s blood, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.” (Emphasis added.) The Supreme Court of Florida held, in State v. Rolle, 560 So.2d 1154, 1157 (Fla.1990), that subsection (c) of the statute “creates a permissive inference not an unconstitutional presumption----The legislature clearly understood the language of presumptions but chose to use different language in paragraph (c) (“shall be prima facie evidence”).” The Florida court found the difference to be “crucial,” and pointed out that the Supreme Court stated in Allen that, “with a permissive inference, ‘the basic fact may constitute prima facie evidence of the elemental fact.’ ” Id. at 1156 (quoting Allen, 442 U.S. at 157 , 99 S.Ct. 2213 ).

Other such statutes have received similar construction. See, e.g., State v. Tiedemann, 7 Haw.App. 631, 634 , 790 P.2d 340 (1990) (holding that the trial court failed to instruct jurors that if they found defendant’s BAC was .10 percent or more that “they were not required to, infer, therefrom that she was under the influence of intoxicating liquor when she was operating the van”); Commonwealth v. Mahoney, 400 Mass. 524, 532 , 510 N.E.2d 759 (Mass.1987) (holding that the statute, which speaks in terms of a “presumption” that a defendant was under the influence of intoxicating liquor if the defendant’s blood alcohol was .10 or greater, creates a “permissible inference” that the jury may employ in determining whether a defendant was intoxicated); Commonwealth v. Murray, 749 A.2d 513 (Pa.Super.2000)(en banc)(holding that the statutory presumption permits but “does not require the jury to conclude a defendant’s BAC was above the legal limit”); Eckman v. State, 600 S.W.2d 937 (Tex.Cr.App.1980) (holding that the then-existing statutory presumption of intoxication was not mandatory and did not have to be accepted by the trier of fact); State v. Ball, 164 W.Va. 588, 589-90 , 264 S.E.2d 844 (W.Va.1980) (holding that W. Va.Code, 17C-5A-5 (1968) is not ⁵¹³ “unconstitutional because it provides that one tenth of one percent or more, by weight, of blood-alcohol shall be admitted as prima facie evidence of intoxication”); State v. Raddeman, 238 Wis.2d 628, 633, 635 , 618 N.W.2d 258 (Wis.Ct.App.2000) (holding that Wis. Stat. § 885.235 (lg)(c) is permissive, not mandatory and that “[t]he burden to prove each element of OWI [operating a motor vehicle while intoxicated] beyond a reasonable doubt remains with the State”); see generally D.E. Evins, Annotation, Construction and Application of Statutes Creating Presumption or Other Inference of Intoxication from Specified Percentages of Alcohol Present in System, 16 A.L.R.3d 748 (1967 & Supp.2006); V. Woerner, Annotated, Validity of Legislation Creating Presumption of Intoxication or the Like from Presence of Specified Percentage of Alcohol in Blood, 46 A.L.R.2d 1176 (1956 & Supp.2006). When a constitutional problem does arise, it is due not to the statute itself, but to an improper jury instruction based on it.

Indeed, just such a problem arose in Briscoe, supra. Although we characterized an earlier version of CJ § 10-307(e) as setting forth an inference of intoxication, we held that the trial court improperly instructed the jury by resort to the statutory language itself. Briscoe, 60 Md.App. at 45-47 , 479 A.2d 1385 . We said: “The statutory ‘prima facie evidence’ language is, of course, addressed to the trial judge.

It tells him, in effect, that if certain evidence has been introduced ... there is a case sufficient to go to the jury-a case in which the jury may but is not required to find intoxication.” Id. at 46 , 479 A.2d 1385 . We recognized that the court’s “[u]se of the ‘prima facie evidence’ wording of § 10-307(e) might have incorrectly persuaded the jury that this was a statutory