The sole assignment of error brought forward and argued in defendant’s brief relates to the following instruction to the jury:
“Now, there’s evidence in this case which tends to show that a chemical test known as the breathalyzer was given to this defendant. If you should find from the evidence and beyond a reasonable doubt that the chemical test indicated one-tenth of 1% or more by weight of alcohol in his blood, *39you may infer from his evidence that the defendant was under the influence of intoxicating beverage, however, you are not compelled to do so. . . . ”
Defendant contends the instruction was erroneous in that it enabled the jury to make a determination of defendant’s guilt or innocence based upon his condition at the time the breathalyzer test was administered rather than at the time he was, operating his automobile on the highway (approximately one hour earlier). We find no merit in the assignment in view of the following instruction given immediately after the challenged instruction:
“ It is your duty to consider this evidence together with all other evidence in this case in determining whether the State has proven beyond a reasonable doubt that the defendant was under the influence of intoxicating beverage at the time he drove his vehicle on the public highways of this State, if you find beyond a reasonable doubt that he did drive a vehicle on the public highways of this State. ...” (Emphasis added.)
When the instructions are considered contextually, we think the court made it clear that the jury was to determine defendant’s condition with respect to intoxication “at the time he drove his vehicle on the public highways of this State.”
We hold that defendant received, a fair trial, free from prejudicial error.
No error.
Judges Hedrick and Martin concur.