dissenting.
I respectfully dissent.
While the majority correctly finds the instruction in question may have impermis-sibly shifted the burden of proof on the element of intoxication to Petrie, reversal is not warranted here.
In Sturgeon v. State (1991), Ind.App., 575 N.E.2d 679, this court concluded:
“An instruction that impermissibly shifts the burden of proof on an element of the offense is not so basic to a fair trial that it can never be harmless. [See Rose v. Clark (1986), 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460]; Reid v. State (1988), Ind., 529 N.E.2d 1309. Thus, Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 and its progeny mandate that we consider the entire record prior to reversing a conviction for constitutional error that may be harmless beyond a reasonable doubt.”
Sturgeon, at 682.
Unlike Sturgeon where the evidence of the defendant’s intoxication was “neither undisputed nor overwhelming,” see id. at 682, the inference of Petrie’s intoxication is inescapable and the evidence presented at trial was undisputed.
Fort Wayne police officer Steve Haynes (Haynes) testified that he stopped Petrie for driving sixty miles per hour in a forty mile per hour zone. Record at 92. Haynes observed that Petrie smelled strongly of alcohol, had bloodshot eyes and slurred speech. Record at 94, 97, 110. Petrie leaned against his motorcycle for support, and he fumbled with his driver’s license when attempting to remove it from his wallet. Record at 95. Petrie was given a breathalyzer test which indicated that he had a blood alcohol content of .14%.
A video of Petrie taken at the police station revealed that he would not follow a police officer’s directions when instructed to count from ten to one. Petrie forgot that he had been informed of the implied consent law, he could not remember his zip code, and he swayed when he was instructed to walk a straight line. Record at 148.
*606The evidence conclusively demonstrates that Petrie was intoxicated, so the instruction which impermissibly shifted the burden of proof to Petrie on the element of intoxication is harmless beyond a reasonable doubt. See Reid, supra; Sturgeon, supra.
I would affirm Petrie’s conviction for driving while intoxicated.