No. 89-189 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

CLIFFORD R. LEVERETT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ira Eakin, Billings, Montana 

r- For Respondent: 

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\L ', Hon. Marc Racicot, Attorney General; John Paulson, r: 4 ! ' 1:' Assistant Attorney General, Helena, Montana 

Harold Hanser, County Attorney; Brent Brooks, Deputy 

County Attorney, Billings, Montana 

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Filed: 

Submitted on Briefs: May 24, 1990 

~ecided: September 18, 1990 a 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Following trial in the Thirteenth Judicial District Court, 

Yellowstone County, a jury found appellant Clifford R. Leverett 

guilty of negligent homicide for striking and killing a pedestrian 

with his automobile. Leverett now appeals, primarily alleging 

errors in evidence and jury instructions related to his driving 

under the influence of alcohol. We reverse and remand. 

FACTS 

Late in the afternoon of September 24, 1988, appellant 

Leverett was involved in an automobile accident near the curve 

where Sixth Avenue North leads into Division Street in downtown 

Billings, Montana. After rounding the curve, Leverett's car 

crossed from the outside lane of traffic through the inside lane 

and two oncoming lanes and crashed into a parked car. Somewhere 

near the centerline, his vehicle struck a pedestrian who died the 

next morning of injuries. Following the accident, the appellant 

underwent field sobriety tests and a breath test. The breath test 

registered his blood alcohol content at .121. The State subsequently charged Leverett with negligent homicide, and a jury found him 

guilty. 

Leverett now appeals his conviction and raises a number of 

issues related to the evidence and jury instructions concerning 

intoxication. We decline to discuss every issue raised by the 

appellant because one is sufficient to reverse his conviction and 

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remand the case for a new trial. The District Court's jury 

instruction that a blood alcohol level greater than .10 raised a 

mandatory rebuttable presumption that the appellant was under the 

influence of alcohol violated his right to due process under the 

Fourteenth Amendment of the United States Constitution. 

THE CHALLENGED INSTRUCTIONS 

Instruction No. 11 tracked verbatim 6 61-8-401, MCA, providing 

in pertinent part: 

Upon the trial of any civil or criminal action 

or proceeding arising out of acts alleged to 

have been committed by any person driving or 

in actual physical control of a vehicle while 

under the influence of alcohol, the concentration of alcohol in the person's blood at the 

time alleged, as shown by chemical analysis of 

the person's blood, urine, breath, or other 

bodily substance, shall give rise to the 

following presumptions: 

(c) If there was at that time an alcohol 

concentration of 0.10 or more, it shall be 

presumed that the person was under the influence of alcohol. Such presumption is 

rebuttable. 

The provisions of subsections A-C do not limit 

the introduction of any other competent evidence bearing upon the issue of whether the 

person was under the influence of alcohol. 

Jury Instruction No. 12 quoted 3 30-1-201(31), MCA, stating: 

"Presumption1' or "presumed" means that the 

trier of fact must find the existence of the 

fact presumed unless and until evidence is 

introduced which would support a finding of 

its nonexistence. 
THE SCOPE AND PERSPECTIVE OF ANALYSIS 

The current analysis of whether a jury instruction containing 

an evidentiary presumption in a criminal case violated the 

defendant's due process rights follows a procedure established by 

the United States Supreme Court in Sandstrom v. Montana (1979) , 442 

U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Ulster County Court v. 

Allen (1979), 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777. The 

United States Supreme Court has most recently reaffirmed that 

procedure in Francis v. Franklin (1985) , 471 U. S. 307, 105 S. Ct . 

In analyzing evidentiary presumptions in a criminal case, the 

reviewing court must focus on the particular language used to 

charge the jury and determine whether a reasonable juror could have 

interpreted the challenged instruction as an unconstitutional 

presumption. 

Analysis must focus initially on the specific 

language challenged, but the inquiry does not 

end there. If a specific portion of the jury 

charge, considered in isolation, could reasonably have been understood as creating [an 

unconstitutional presumption], the potentially 

offending words must be considered in the 

context of the charge as a whole. Other 

instructions might explain the particular 

infirm language to the extent that a reasonable juror could not have considered the 

charge to have created an unconstitutional 

presumption. 

Francis, 471 U.S. at 315, 105 S.Ct. at 1971, 85 L.Ed.2d at 354 

(citation omitted). 
PRESUMPTIONS OF ESSENTIAL ELEMENTS 

We begin our analysis with a preliminary matter which the 

United States Supreme Court has not explicitly addressed: whether 

the challenged presumption must go to an essential element of the 

crime charged. The United States Supreme Court has consistently 

reiterated the premise that its holdings on unconstitutional 

presumptions apply only to presumptions of facts which must be 

proved before the defendant can be found guilty. See e.g. Francis, 

471 U.S. at 313, 105 S.Ct. at 1970, 85 L.Ed.2d at 352 (the Due 

Process Clause "prohibits the State from using evidentiary 

presumptions in a jury charge that have the effect of relieving the 

State of its burden of persuasion beyond a reasonable doubt of 

every essential element of a crimett) (emphasis added); Ulster 

County, 442 U.S. at 156, 99 S.Ct. at 2224, 60 L.Ed.2d at 791 (the 

presumption "must not undermine the factfinderts responsibility at 

trial, based on evidence adduced by the State, to find the ultimate 

facts beyond a reasonable doubttt) (emphasis added) ; Sandstrom, 442 

U.S. at 520, 99 S.Ct. at 2457, 61 L.Ed.2d at 49 (I1[i]t is clear 

that under Montana law, whether the crime was committed purposely 

or knowingly is a fact necessary to constitute the crime of 

deliberate homicidett) (emphasis added) . This Court has specif ically held that presumptions which create affirmative defenses do not 

go to an element of the crime charged and, therefore, do not 

violate due process. State v. Sunday (1980), 187 Mont. 292, 304, 
609 P.2d 1188, 1196; State v. McKenzie (1980), 186 Mont. 481, 525, 

In the present case, in view of the wording of the information 

and Instruction No. 5, the presumption of intoxication does go to 

an element of the crime charged. "A person commits the offense of 

negligent homicide if he negligently causes the death of another 

human being." Section 45-5-104, MCA. A person is criminally 

negligent under the negligent homicide statute when he 

consciously disregards a risk that the [death] 

will occur . . . or when he disregards a risk 

of which he should be aware that the [death] 

will occur . . . . The risk must be of such 

a nature and degree that to disregard it 

involves a gross deviation from the standard 

of conduct that a reasonable person would 

observe in the actor's situation. "Gross 

deviationv1 means a deviation that is considerably greater than lack of ordinary care. 

Section 45-2-101(37), MCA. In two previous negligent homicide 

cases, this Court held that driving under the influence of alcohol 

may be tantamount to criminal negligence. State v. Cook (1982), 

198 Mont. 329, 333, 645 P.2d 1367, 1370; State v. Kirkaldie (1978), 

179 Mont. 283, 292, 587 P.2d 1298, 1304; see also Lupro v. State 

(Alaska 1979), 603 P.2d 468, 474-75; State v. Montieth (Or. 1966), 

417 P.2d 1012, 1015. More important to our present analysis is the 

language of the instructions to the jury. Instruction No. 5 

followed the language of the information filed against the 

appellant: 

You are instructed that the specific charge in 

this case reads as follows: . . . 
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The facts constituting the offense are: 

That the defendant CLIFFORD R. LEVERETT negligently caused the death of Ronald Lee Scheetz 

as defined at MCA Section 45-2-lOl(37) (1987) 

by driving his motor vehicle . . . into a 

pedestrian, Ronald Scheetz at an unsafe rate 

of speed and with a blood alcohol concentration in excess of .10 . . . . 

(Emphasis added.) From this instruction, a reasonable juror may 

have concluded that a finding of intoxication was necessary for 

conviction. 

CLASSIFYING THE PRESUMPTION 

Under the United States Supreme Court's analysis, we must 

undertake a step-by-step classification of the presumption used in 

this case to determine whether it violated the appellant's right 

to due process. The first step in this classification is to 

determine whether a reasonable juror would understand it to be a 

mandatory or permissive presumption. 

The threshold inquiry in ascertaining the 

constitutional analysis applicable to this 

kind of jury instruction is to determine the 

nature of the presumption it describes. The 

court must determine whether the challenged 

portion of the instruction creates a mandatory 

presumption or merely a permissive inference. 

A mandatory presumption instructs the jury 

that it must infer the presumed fact if the 

State proves certain predicate facts. A 

permissive inference suggests to the jury a 

possible conclusion to be drawn if the State 

proves predicate facts, but does not require 

the jury to draw that conclusion. 
Francis, 471 U.S. at 313-14, 105 S.Ct. at 1971, 85 L.Ed.2d at 353 

(quotation and citation omitted). A permissive presumption does 

not violate due process so long as a rational connection exists 

between the predicate and presumed fact. Ulster County, 442 U.S. 

at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 792. A mandatory presumption, on the other hand, may or may not be constitutional depending 

on its type and function. 

In determining whether a reasonable juror would have viewed 

Instruction Nos. 11 and 12 as mandatory or permissive, we note that 

most jurisdictions considering similar jury charges have found that 

they create mandatory presumptions unless the language of the 

inference is unambiguously permissive. See e.g. State v. McDonald 

(S.D. 1988), 421 N.W.2d 492, 496; Barnes v. People (Colo. 1987), 

735 P.2d 869, 874; Commonwealth v. Moreira (Mass. 1982), 434 N.E. 2d 

196, 200; State v. Vick (Wis. 1981), 312 N.W.2d 489, 497; State v. 

Dacey (Vt. 1980), 418 A.2d 856, 859; State v. Berch (Iowa 1974), 

222 N.W.2d 741, 746; but see Commonwealth v. DiFrancesco (Pa. 

1974), 329 A.2d 204, 211; Hillery v. State (Ga. App. 1983), 299 

S.E.2d 421, 422. Here, the challenged instructions clearly are not 

permissive. Instruction No. 11 states that "it shall be presumed. 

Instruction No. 12 states that "the trier of fact must find." By 

their plain language, the instructions create a mandatory presumption of intoxication. 

The next classification step is to determine whether the 

mandatory presumption is conclusive or rebuttable. 

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A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the 

case once the State has proved the predicate 

facts giving rise to the presumption. A 

rebuttable presumption does not remove the 

presumed element from the case but nevertheless requires the jury to find the presumed 

element unless the defendant persuades the 

jury that such a finding is unwarranted. 

Francis, 471 U.S. at 314, n.2, 105 S.Ct. at 1971, n.2, 85 L.Ed.2d 

at 353, n.2 (citation omitted). A conclusive presumption eliminates the defendant's right to challenge the presumed fact and 

violates due process if it goes to an element of the crime charged. 

Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459, 61 L.Ed.2d at 51. 

The present presumption of intoxication is plainly not 

conclusive. ~nstruction No. 11 specifically provides that the 

presumption is rebuttable and does not limit the defendant's 

ability to introduce contrary evidence. A reasonable juror could 

not have found anything but a mandatory rebuttable presumption of 

intoxication. 

As the United States Supreme Court made clear in Francis, a 

mandatory rebuttable presumption is generally just as unconstitutional as a conclusive presumption because it commonly shifts the 

burden of persuasion to the defendant. 

A mandatory rebuttable presumption is perhaps 

less onerous [than a conclusive presumption] 

from the defendant Is perspective, but it is no 

less unconstitutional. Our cases make clear 

that such shifting of the burden of persuasion 

with respect to a fact which the State deems 

so important that it must be either proved or 
presumed is impermissible under the Due 

Process Clause. 

Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355 

(quotation and citation deleted) ; see also City of Missoula v. Shea 

(1983), 202 Mont 286, 294, 661 P.2d 410, 414. 

The final step in classifying the presumption of intoxication 

is one not yet reached by any United States Supreme Court decision. 

Mandatory rebuttable presumptions may be divided into those which 

shift the burden of persuasion to the defendant and those which 

shift the burden of production to the defendant. Ulster County, 

442 U.S. at 157, n.16, 99 S.Ct. at 2225, n.16, 60 L.Ed.2d at 792, 

n.16. The former type is represented by affirmative defenses which 

require the defendant to meet some specified degree of persuasion 

to overcome the presumption. Affirmative defenses do not violate 

due process so long as they do not supplant the traditional 

elements of the crime charged. Patterson v. New York (1977), 432 

U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281, 289. 

The burden-of-production shifting presumptions, however, are 

much more problematic. They generally go to an element of the 

crime charged and allow the defendant to overcome the presumption 

by introducing any contrary evidence. The United States Supreme 

Court has not yet been faced with the question of whether such 

presumptions violate due process, Francis, 471 U.S. at 314, n.3, 

105 S.Ct. at 1971, n.3, 85 L.Ed.2d at 353, n.3, but the Court has 
indicated in dicta that they may be constitutional in some 

instances: 

To the extent that a presumption imposes an 

extremely low burden of production--e.g., 

being satisfied by ttanyww evidence--it may well 

be that its impact is no greater than that of 

a permissive inference, and it may be proper 

to analyze it as such. 

Ulster County, 442 U.S. at 157, n.16, 99 S.Ct. at 2225, n.16, 60 

L.Ed. 2d at 792, n. 16. It would appear, however, that the United 

States Supreme Courtws supposition would not apply to the present 

case because the presumption of intoxication was presented to the 

jury . 

Were we not looking through the eyes of a reasonable juror, 

we might understand Instruction No. 12 to make the presumption of 

intoxication a burden-of-production shifting presumption. Instruction No. 12 states: 

ttPre~~mptiontw or ttpresumedw means that the 

trier of fact must find the existence of the 

fact presumed unless and until evidence is 

introduced which would support a finding of 

its nonexistence. 

The wtunless or untilt8 language indicates that the presumption might 

be overcome as soon as the defendant introduced any contrary 

evidence. 

If this is a burden-of-production presumption, we must ask why 

it was given as a jury instruction. Such presumptions may serve 

several purposes, none of which appear to be constitutional when 

the presumption is presented to the jury. A burden-of-production 
presumption may establish the State's prima facia case against the 

defendant's motion for a directed verdict or it may streamline the 

prosecution by eliminating collateral issues, such as affirmative 

defenses, until raised by the defendant. See 1 Weinstein's 

Evidence, n 300[02] (1989). As a procedural device, the presumption presents a question of law for the court. A question of law 

has no place in the jury charge. State v. Poncelet (1980), 187 

Mont. 528, 542, 610 P.2d 698, 706. In the present case, the 

appellant presented considerable evidence that he was not intoxicated at the time of the accident. As soon as he presented his 

first witness on the issue, the presumption of intoxication had 

sewed its purpose as a procedural device and should have been 

eliminated for the case. See United States v. Hendrix (2nd Cir. 

1976), 542 F.2d 879, 882, cert. den. 430 U.S. 957, 97 S.Ct. 1609, 

51 L.Ed.2d 810 (1977) ; Commonwealth v. Moreira (Mass. 1982), 434 

N.E.2d 196, 199; but see State v. Trujillo (N.M. 1973), 510 P.2d 

1079, 1084. 

Like any other presumption, a burden-of-production presumption 

may also represent scientific, statistical, or common-knowledge 

evidence linking the predicate and presumed facts. See 1 Weinstein's Evidence, 9 300[02] (1989). Montana's presumption of 

intoxication is apparently based on evidence demonstrating that a 

person with a blood-alcohol level of greater than .10 cannot safely 

operate a motor vehicle. However, even if the presumptionls only 

function is to point out that well recognized relationship to the 

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jury, it still should not be presented to the jury in a manner 

which places a burden of production on the defendant. If the 

defendant came forward with no contrary evidence, the presumption 

would act as a directed verdict for the State on the issue of 

intoxication. That would be contrary to the due process axiom that 

the criminal defendant is entitled to sit silent and go free if the 

prosecution fails to prove every element of the crime beyond a 

reasonable doubt. See State v. Greeno (1959), 135 Mont. 580, 592, 

342 P.2d 1052, 1058. If, on the other hand, the defendant does 

present contrary evidence, as he did in this case, the presumption 

is overcome. Presenting the presumption to the jury then serves 

no purpose except to imply that the defendant has some burden of 

proof on an element of the crime. The danger of that implication 

was particularly great in this case because Instruction No. 12 was 

not unmistakably clear that the appellant could overcome the 

presumption by producing any evidence that he was not intoxicated. 

A reasonable juror could easily have interpreted Instruction 

No. 12 as shifting the burden of persuasion to the appellant and 

not as merely shifting the burden of production. The instruction 

required the jury to find intoxication tlunless and until evidence 

is introduced which would support a finding of its nonexistence." 

It did not state what quantum of evidence was necessary to support 

a finding of its nonexistence. A reasonable juror may have 

believed that the appellant not only had to introduce contrary 

evidence, but that he had an affirmative duty to convince the jury 

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that he was not intoxicated. As noted above, under Francis, such 

a mandatory rebuttable presumption which shifts the burden of 

persuasion to the defendant violates due process. 

CORRECTIVE INSTRUCTIONS 

An unconstitutional mandatory presumption charged to the jury 

cannot be cured by other instructions giving a correct statement 

of the law. The reviewing court cannot determine whether the jury 

improperly relied upon the unconstitutional instructions or 

properly relied on the correct instructions but found the defendant 

guilty anyway. Francis, 471 U.S. at 322, 105 S.Ct. at 1979, 85 

L.Ed.2d at 358. It is, therefore, no answer to say that Instruction Nos. 3 and 8 informed the jury that the defendant was cloaked 

in a presumption of innocence throughout the proceeding and that 

the State could overcome that presumption only by proving every 

element of negligent homicide beyond a reasonable doubt. 

HARMLESS ERROR 

A resort to harmless error analysis also fails to save the 

unconstitutional instructions. Although at one time the United 

States Supreme Court refused to apply harmless error analysis to 

unconstitutional presumptions, Sandstrom, 442 U.S. at 526-27, 99 

S.Ct. at 2460-61, 61 L.Ed.2d at 52-53, in Rose v. Clark the Court 

adopted the same harmless error test applied to other types of 

constitutional errors. 

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[I]f the defendant had counsel and was tried 

by an impartial adjudicator, there is a strong 

presumption that any other errors that may 

have occurred are subject to harmless error 

analysis. . . . Where a reviewing court can 

find that the record developed at trial establishes guilt beyond a reasonable doubt, . . . the judgment should be affirmed. 

Rose (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 

460, 471. A finding of guilt beyond a reasonable doubt does not 

require that defendant conceded the presumed fact. The question 

is to be determined from the entire record. Rose, 478 U.S. at 583, 

Here the record indicates that intoxication was a hotly 

debated trial issue. Several witnesses testified that the 

appellant had little to drink and did not appear to be intoxicated 

immediately before or after the accident. Two police officers, 

however, testified that the appellant later failed field sobriety 

tests. Both parties presented expert witnesses who testified for 

and against the accuracy of the breath test which registered .121. 

The evidence also conflicted on the appellant's driving immediately 

prior to the accident and on how the accident occurred. The 

recorded evidence is not so clear that we can now step into the 

shoes of the jury and find the appellant guilty beyond a reasonable 

doubt. Compare People v. Hickox (Colo. App. 1987), 751 P.2d 645, 

647-48 (presumption of intoxication held unconstitutional but 

harmless because the record contained overwhelming evidence of 

intoxication) . 
THE STATUTE 

Our holding that the jury instructions on the presumption of 

intoxication were unconstitutional does not reach the statute 

itself. By its plain language, § 61-8-401, MCA, creates a 

mandatory rebuttable presumption of intoxication. When the 1983 

Legislature amended the statute to make the presumption rebuttable, 

it considered the implications of Sandstrom and apparently decided 

that the statute was constitutional because the presumption was 

rebuttable. Consideration of H.B. 540 Before the Senate Judiciary 

Comm., 48th Leg., (February 10, 1983) at 3-4, and Exhibit A at 5- 

6 (Testimony of Asst. Attgy. Gen. Steve Johnson). In Francis, the 

United States Supreme Court nullified that theory by holding that 

even mandatory rebuttable presumptions are unconstitutional. 

Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355. 

Like every other state in the union, Montana adopted the presumption of intoxication to fulfill federal highway funding requirements. See 23 U.S.C. § 408(e) (1) (C); 23 C.F.R. § 1204.4, Highway 

Safety Program Guideline No. 8, IB. A number of states have saved 

their unconstitutional statutory versions of the presumption by 

reading indisputably mandatory language as permissive; in effect, 

the courts have held that "shallgg means "may." See e.g. Barnes v. 

People (Colo. 1987), 735 P.2d 869, 873; State v. Dacey (Vt. 1980), 

418 A.2d 856, 859. 

We do not find it necessary to go to such lengths to avoid 

striking down the statute. The introductory language of S 61-8- 

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401, MCA, provides that it applies to "any civil or criminal action 

or proceeding . . . ." In some of the many contexts in which the 

presumption of intoxication might come into play, it may be 

constitutional; in others, it may not. That determination will 

depend on the purpose of the presumption, the type of proceeding, 

and the particular language used to convey the presumption to the 

jury. Under our holding today, the presumption of intoxication 

violates the criminal defendant's right to due process only if the 

presumption goes to an element of the crime charged and a reasonable juror could read the presumption as mandatory. 

CONCLUSION 

The solution to the due process problems of using presumptions 

in jury charges is not, as was attempted in this case, to make them 

burden-of-production shifting presumptions. The solution is to 

make the presumptions unambiguously permissive. 

Because [a] permissive presumption leaves the 

trier of fact free to credit or reject the 

inference and does not shift the burden of 

proof, it affects the application of the 

"beyond a reasonable doubtvv standard only if, 

under the facts of the case, there is no 

rational way the trier could make the connection permitted by the inference. For only in 

that situation is there any risk that an 

explanation of the permissible inference to a 

jury, or its use by a jury, has caused the 

presumptively rational factfinder to make an 

erroneous factual determination. 

Ulster County, 442 U.S. at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 

792. While Montana has not yet done so, a large number of 

17 
jurisdictions have followed the federal courts in adopting 

evidentiary rules which require that all presumptions presented to 

juries be clearly permissive. See 1 Weinstein s Evidence, 

9 303[08] (1989). In the present case, had the language of 

Instruction Nos. 11 and 12 been modified to make the presumption 

unmistakably permissive, the instructions would have passed 

constitutional muster. 

In addition, we specifically disapprove the trial court's use 

of Instruction No. 13, a civil instruction on proximate cause. In 

drafting appropriate instructions on causation on retrial, the 

trial court should refer to 5 45-2-201, MCA, and to Instruction No. 

14 of the Montana Criminal Instructions Guide, along with the 

evidence presented at trial. 

By copy of this opinion, we ask the Supreme Court Commission 

on Rules of Evidence to consider the advisability of adopting a 

rule of evidence addressed to presumptions in criminal cases. See 

Uniform Rules of Evidence, Rule 303 (1974) ; also 1 Weinstein's 

Evidence, 9 303 (1989) . 

The case is reversed and remanded for a new trial. 
We concur: 

Justices r 

Judge, sitting in place 

Justice Diane G. Barz 

*on-. Ted L. -~izngr/]-District 

Judge, sittinp$lace of 

Justiw John , Sheehy 

Hon. 

pi?' L. (t/. fa, 

Gulbrandson, Retired 

sitting in place of 

Justic R. C. McDonough