(concurring specially).
I agree that SDCL §§ 19-11-3 and 19-11-4 apply in this case and that the instructions were inadequate under these statutes. I also agree with the majority’s analysis of these statutes because, in essence, it gives them their fair meaning. The opinion sets forth the burdens that must be met before the presumption applies and explains the application of the presumption when it is justified under the evidence. This is an area, however, which conceptually must be clearly understood and which I feel could bear additional comment.
A person violates SDCL 32-23-1(2) if they drive or are in actual physical control of any vehicle while under the influence of alcohol. Under SDCL 32-23-7, a person who has a blood alcohol content of .10 percent or more at the time alleged is presumed to be under the influence of alcohol. The word “presumption” in SDCL 32-23-7 is used in the sense of a “permissive inference” or “prima facie” proof. State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973). Thus, the jury may, but is not required to, infer the presumed fact from the basic fact, i.e., evidence of a .10 percent blood alcohol level is sufficient to justify a finding that a person is under the influence of alcohol, but the jury is free to either accept or ignore that inference.
This court has never ruled on the relationship between SDCL 32-23-1(2) and SDCL 32-23-7. Specifically, we have never ruled whether or not, for purposes of applying the statutory presumption in driving under the influence cases, the words “at the time alleged” in SDCL 32-23-7 must by necessity mean the time of the alleged offense, i.e., when the person was driving or in actual physical control of the vehicle. It seems clear, however, that under the present form of these statutes, the driver must have had a blood alcohol content of .10 percent or more at the time he *498or she was driving before it may be presumed that they were “driving under the influence.”
This is a statutory presumption in a criminal case; a statutory presumption making one fact “prima facie” evidence of another fact. This presumption has the effect described in SDCL 19-11-2 because “certain facts are ‘prima facie’ evidence of other facts or guilt.” Therefore, SDCL §§ 19-11-3 and 19-11-4 apply pursuant to SDCL 19-11-2.
SDCL 19-11-3 governs submission of the presumed fact to the jury. If the presumed fact establishes guilt or is an element of the offense, the court may put this ultimate issue to the jury only if all the evidence is sufficient to support a finding of guilt, or of the element, beyond a reasonable doubt. This is a sufficiency of the evidence determination similar to the approach applied in determining a motion for judgment of acquittal. See Federal Advisory Committee Note, 56 F.R.D. 183, 212-14 (1973).
The basic fact involved with this presumption is the blood alcohol content held by the driver. If the blood alcohol content is proven to be .10 percent or more at the time the driver is stopped, the jury may infer the presumed fact that the person was under the influence at that time. While I would agree this is an ultimate issue presumption, I believe it is so because the presumed fact “establishes guilt” and not because it is an “element of the offense” as that term is commonly understood.
SDCL 19-11-4 governs instructions to the jury. The court must instruct the jury that upon sufficient evidence of the basic fact, the trier may, but need not, infer the presumed fact. The standard of proof of the basic facts leading to an ultimate issue presumption is not explicitly stated in the statute, but I agree with the majority that the rule should be read to require evidence of the basic fact such that the jury could find that fact beyond a reasonable doubt. While the trier may infer the presumed fact from the basic fact alone, the prosecution must introduce sufficient evidence that a reasonable juror could find the basic fact to have been proved beyond a reasonable doubt. At most, the defendant bears the practical burden of going forward in the sense that, if he does not produce countervailing evidence concerning the basic fact of blood alcohol content, the jury is more likely to be persuaded to draw the inference.
Although the jury has the freedom to accept (or reject) the presumed fact based on sufficient proof of the basic fact, the second sentence in SDCL 19-11-4 makes it clear that the presumption cannot operate to excuse the government from having to prove the existence of a presumed fact which also establishes guilt or is an element of the offense. Therefore, along with evidence of the basic fact of blood alcohol content, the jury must also examine all of the other evidence proving or disproving the presumed fact (whether the driver was under the influence) before arriving at its verdict.
It is also clear, however, that while the evidence as a whole must establish the presumed fact (ultimate issue) beyond a reasonable doubt, the jury may arrive at a determination of guilt solely on the basis of the blood test and those facts, however limited, that led to its production. Although the other facts that relate to whether or not the driver was under the influence and which provide the officer with probable cause may be limited, the jury may arrive at a determination of guilt regardless of the amount of such other evidence because of the strength the law attaches to the blood test results. Therefore, if the defendant offers no argument concerning the blood test or does not effectively address any of the other circumstances surrounding the case, there may be no reasonable doubt remaining on the ultimate issue.
I agree with the majority that the blood test is admissible. The required foundation and relevance are both present in a “driving under the influence” case even if the test results are not related back to the time of driving. Evidence that the defendant’s blood alcohol level was .14 shortly *499after her arrest tends to prove that at some time prior to her arrest the defendant had consumed some quantity of alcohol. The test results and related testimony may not be conclusive as to whether the defendant was “under the influence” when she was stopped, but proof of consumption is evidence that might reasonably lead to that conclusion. Tyner v. State, 503 N.E.2d 444 (Ind.App.1987); Smith v. State, 502 N.E.2d 122 (Ind.App.1986).
However, I think citing Helmer in reference to the issue of admissibility in this case could cause some confusion. Helmer involved a case where the defendant was charged only for a per se violation of driving with a prohibited amount of alcohol in the blood, and the issue was whether extrapolation was necessary for the admissibility of the blood test. As the majority notes, in this case the trial court dismissed the charge on the per se “.10 percent violation,” and the claimed error must relate to the “driving under the influence” charge. Therefore, reference to the admissibility of a blood test in a Helmer situation is not pertinent to resolving admissibility in this case. As the majority opinion has already noted, in a case where there is a question whether a person was driving while “under the influence,” the blood test is not just admissible solely for the “limited purpose” of proving what the blood alcohol content was at the time of the offense. While extrapolation evidence may be necessary for purposes of applying the statutory presumption, as well as for purposes of establishing guilt under SDCL 32-23-1(1), the blood test is plainly admissible to prove the driver was drinking before she was stopped. Therefore, the reader should be cautioned that the dicta in Helmer cited in this case should only be read in conjunction with the important language found in footnote two of this opinion.