(dissenting) — Today’s holding reduces a significant constitutional question to a determination whether there was sufficient evidence to convict. The issue before this court is whether jury instruction 9 violated Hanna’s right to due process under the Fourteenth Amendment by permitting the jury to infer the element of reckless driving simply from evidence Hanna drove in excess of the speed limit. The majority upholds the constitutionality of instruction 9 on a finding the evidence of speed in addition to other evidence of recklessness supported the reckless driving element. This is not the proper inquiry. Because instruction 9 permits the jury to satisfy the recklessness element solely from a finding of excess speed, the constitutionality of this *717inference must also be determined without reference to other evidence of recklessness. The majority has merely established there was sufficient evidence to convict — a contention not at issue in this case.
Unlike the majority, I cannot say with substantial assurance that an inference of reckless driving flows more likely than not from evidence of excessive speed. The jury instruction permitted the jury to infer Hanna drove recklessly solely by finding he was speeding. Today’s holding effectively gives jurors license to impose substantial criminal sanctions on speeders. Surely this cannot comport with our notions of fundamental fairness. Because I believe this instruction is constitutionally defective, I dissent.
At issue in this case is a pattern jury instruction creating a permissive inference, which allowed, but did not require, the jury to infer recklessness solely from proof of excessive speed. Instruction 9 provided:
A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.
This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Inferences are evidentiary devices which help the prosecution establish the elements of the crime charged. As the majority correctly suggests, an inference may not lessen or shift the prosecution’s burden of proof on any element. Majority, at 710. Inferences are further limited by principles of due process. There must be a rational connection between the underlying fact and the inferred fact. See Tot v. United States, 319 U.S. 463, 467-68, 87 L. Ed. 1519, 63 S. Ct. 1241 (1943). The standard by which the rational connection is measured depends, in part, on the degree to which the prosecution is relying on the inference to establish an element of the crime. When, as here, the inference is only part of the prosecution’s proof supporting an element of a crime, the rational connection between the proved fact and the inferred fact is established if the inferred fact flows "more likely than not” from the proved fact. County Court of Ulster *718Cy. v. Allen, 442 U.S. 140, 165, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979).
Applying the rational connection test to jury instruction 9, the question is whether the fact of reckless driving flows more likely than not from proof a defendant was speeding. Or phrased another way, can we say with reasonable assurance that one who speeds also drives in a rash or heedless manner, indifferent to the consequences? Common experience tells us the answer to this question is no. Excess speed alone is only determinative of speeding — violating the posted speed limit. Yet as it is currently phrased, instruction 9 could be used to uphold joint issuance of reckless driving citations and speeding tickets. While I concede excessive speed may, in some circumstances, contribute to recklessness, and evidence of speeding is probative on this issue, I cannot conclude speed alone more likely than not establishes the element of reckless driving. The rational connection between the proved fact and the inferred fact required by due process is simply not present.
In Schwendeman v. Wallenstein, 971 F.2d 313 (9th Cir. 1992), cert. denied,_U.S__, 122 L. Ed. 2d 130, 113 S. Ct. 975 (1993), the Ninth Circuit reviewed an identical jury instruction on habeas corpus petition, and likewise concluded the instruction was unconstitutional. While not binding on this court, the Ninth Circuit’s interpretation of federal constitutional law is per suasive authority. In Schwendeman, the petitioner had been convicted of vehicular assault in Washington and he challenged the constitutionality of the inference instruction. The Ninth Circuit noted there was "plenty of evidence to support Schwendeman’s conviction”. Schwendeman, at 314. "Schwendeman was driving an open-bed truck with passengers in the back at night down a road with potholes, swerving from side to side and exceeding the speed limit.” Schwendeman, at 316.
However, after analyzing the specific language of the instruction, the court determined the instruction "isolated speed as the only circumstance needed to permit the jury to find reckless driving”, concluded it could not "say with sub*719stantial assurance that the inferred fact of reckless driving more likely than not flowed from the proved fact of exces- ' sive speed”, and held the instruction was constitutionally defective. Schwendeman, at 316. The court then concluded the error could not be excused as harmless because it could not exclude the possibility that the instruction materially affected the verdict. Schwendeman, at 316.
Like the Schwendeman court, I do not contest the sufficiency of evidence in this case. The evidence against Hanna was substantial. There was testimony Hanna was driving erratically, tailgating, and "drag racing” another speeding vehicle on a highway with traffic going in both directions. However, we are not reviewing the sufficiency of this evidence. We are instead reviewing the constitutionality of a permissive inference, which limits the scope of evidential facts to speed alone. Evidence that Hanna was traveling somewhere between 10 and 40 m.p.h. over the speed limit does not more likely than not demonstrate Hanna was driving recklessly.
When determining the constitutionality of a jury instruction, we must review the instruction in the same manner as a reasonable juror could have interpreted the charge. Sandstrom v. Montana, 442 U.S. 510, 514, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). "To determine how a reasonable juror could interpret an instruction, we 'must focus initially on the specific language challenged’. ... If the specific instruction fails constitutional muster, we then review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law.” California v. Brown, 479 U.S. 538, 541, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (quoting Francis v. Franklin, 471 U.S. 307, 315, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985)).
Here, instruction 9 fails because it isolates speed as the only circumstance required to permit a reasonable juror to find the element of reckless driving. Because we have no way of knowing whether the jury reached its verdict by equating speeding with recklessness, as it was permitted to do under instruction 9, we must analyze the instruction as *720if it did. See Sandstrom, at 515. Instructions 1, 8, and 13 directed the jury to consider all the evidence and to consider the instructions as a whole. However, these instructions do not conflict with or negate the effect of instruction 9. Under the instructions taken as a whole, a reasonable juror was entitled to satisfy the element of recklessness with all the evidence available or with the evidence Hanna was speeding. Thus, instruction 9 yields an unconstitutional result that the remaining instructions failed to cure.
I would hold jury instruction 9 violated Hanna’s due process rights. I cannot say with substantial assurance that an inference of reckless driving flows more likely than not from evidence of excessive speed. Because we cannot determine how the jury reached its result, the error cannot be harmless. As a result, I would reverse Hanna’s convictions and remand for a new trial.
Utter and Guy, JJ., concur with Johnson, J.
Reconsideration denied May 19, 1994.