The opinion
Dissenting Opinion by
Spaeth, J.:
It seems likely that the trial judge believed that the evidentiary effect to be given a breathalyzer reading of .10 or greater is to shift the burden of proof onto the defendant. Otherwise he would not have asked, “[D]oes [the defendant’s explanation] once more bring him back under the shield of the presumption of innocence?” On the other hand, he also said that the presumption of innocence “remains with the defendant throughout the trial of the case until the jury finds him guilty, finds he has been proved guilty beyond a reasonable doubt.” This suggests the burden of proof does not shift. I would reverse, because if we find the charge lacking in clarity, the jury must have too.
Jacobs, J., joins in this opinion.