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Boyd v. State,
No. M-2004-66 (Okl.Cr., April 5, 2005) (Unpublished): Misdemeanor DWI Winner!!! Boyd went to jury trial apparently on a DUI charge, was convicted of DWI, and sentenced to court costs and a fine only (no jail). REVERSED on the single issue of the denial of the motion to suppress the Intoxilyzer results. Boyd put into issue the State's compliance with the rules and regulations of the Board of Tests for Alcohol and Drug Influence by filing a motion to suppress and attaching a list of the requirements issued by the Board for the operation of the Intoxilyzer. The Court held that the State has the burden to prove compliance with the rules and regulations and did not do so in this case by "merely call[ing] officers who testified that the Board's rules and regulations had been complied with, and that the rules Appellant claimed had not been complied with either were only recommendations or had been changed." (Boyd apparently challenged the Intoxilyzer results because the machine was plugged into a surge protector and was too near a radio). The Court held that the testimony of the officers was insufficient to show what the relevant standards were or whether they had been met. Unfortunately for Boyd, there was testimony from two officers, apart from the Intoxilyzer, indicating that he was intoxicated; so, the Court did not remand with instructions to dismiss, but rather allowed the State the opportunity to re-try him. Still, a pretty good win. Strong dissent by Judge Lumpkin, noting that the two cops thought Boyd was drunk, he had red, bloodshot, glassy eyes, walked sluggishly, failed the HGN, the walk-and-turn, and the one-legged-stand, and the Intoxilyzer results of .08 and .10 actually helped Boyd because the other evidence indicated DUI rather than the lesser DWI (good point). NOTE: Judge Arlene Johnson sided with the majority to reverse. This is a very good sign.
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Smith v. State,
No. M-2004-0742 (Okl.Cr., June 7, 2005) (Unpublished): DUI winner!!! Bench trial where sole issue on appeal was sufficiency of the evidence. Smith was stopped for not wearing a seat belt. Cop detected odor of beer and bloodshot eyes, and Smith admitted to drinking three or more beers (cop did not nail down a time period for the consumption); BUT, no erratic driving, no field sobriety tests, and no breath test (refusal). The legal requirement for "under the influence" is that it must affect the defendant's driving. The trial judge apparently read the statute only, without looking at the instructions, and made an on-the-record statement that he thought the driving had to be affected, but that's not how he read the statute, so he did not impose that legal requirement in deciding the case. Good case; and look at Slusher v. State, 1991 OK CR 83.
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State v. Muldowny,
871 So.2d 911 (Fla. App. 2004): Florida DUI case where the defendant sought through discovery "to inspect and copy and potentially use at trial or hearing the operator's manuals, maintenance manuals, and schematics of the intoxilyzer." The Court held that the defendant is entitled to these things and since the State refused to provide them, suppression of the test results was an appropriate sanction. Although the opinion does not mention the computer source code specifically, I think it is encompassed by the request. I do not know how Oklahoma courts have dealt with such discovery requests but I think a powerful argument could be made that an accused in Oklahoma is entitled to these things. This puts a lot of pressure on the maker of the machine because some of the information requested is propriety trade secrets that they would be loathe to divulge.
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Harry Oliver West v. State,
No. F-2005-700 (Okl.Cr., July 14, 2006) (unpublished): DUI: West was tried and convicted of DUI, AFCF, and sentenced to forty-five (45) years(!!) Although West did not request jury instructions on the definitions of the terms "driving under the influence" and "driving while impaired" the Court nevertheless found the trial court's failure to so instruct to be plain error requiring reversal under Slusher v. State, 1991 OK CR 83. Trial Judge: April Sellers White (Creek County).
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Percy Dewayne Cato v. State,
No. F-2005-859 (Okl.Cr., December 8, 2006) (unpublished): DUI: Felony DUI case that is affirmed, but I include it here because it discusses the issue of a limiting instruction on evidence of a refusal to submit to a breath test or blood test. In Harris v. State, 1989 OK CR 15, the Court held that a refusal is admissible in a DUI case. However, Judge Lumpkin set forth a limiting instruction in his specially concurring opinion. In Cato, the Court agreed "in principle" that a uniform limiting instruction on refusals is needed but rather than promulgate one in this case, the Court referred the matter to the Committee for the Preparation of Uniform Jury Instructions. Thus, if you have a refusal case, the instruction must be given. The Court held that the trial court's failure to give the limiting instruction in this case was error but harmless.
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Marvin Royston White v. State,
No. F-2005-110 (Okl.Cr., May 11, 2007) (unpublished): DUI; Jury Instructions (Court's Failure to Instruct): White was tried by jury in Grady County on three counts of First Degree Manslaughter (Misdemeanor DUI). White was involved in a collision on November 23, 2003, that killed three persons near Tuttle, Oklahoma. Associate District Judge John E. Herndon sentenced White to 20 years on each count in accordance with the jury's verdict, to be served consecutively. At the time of the collision, White was driving home from a weekend hunting trip and had a BAC of between 0.08 and 0.09. White's defense was that he did not drink any beer on the day of the collision, but he medicated himself with Equate Nite Time cold medicine which contained alcohol and he was unaware that it contained alcohol. White denied that he was under the influence of alcohol at the time of the collision and asserted that he must have fallen asleep. Trial counsel did not request instructions on involuntary intoxication. In this 3-2 opinion, the Court REVERSED and remanded for new trial, finding PLAIN ERROR in the failure of the trial court to sua sponte instruct on the defense of involuntary intoxication(!!) NOTE: This is quite an amazing case. I do not recall offhand any case in which the Court reversed on the basis that the trial court failed to instruct sua sponte (usually these types of instructional errors are waived if trial counsel does not request the instructions). I suspect there is some aspect of the facts of this case which lead the majority to believe that the proceedings were unfair (there were many issues raised in addition to the one that resulted in reversal).
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Bell v. State,
2007 OK CR 43 (November 15, 2007): 1) DUI; 2) Prosecutorial Misconduct; Improper Argument & Improper Questions: This is a case out of Grady County where Bell was convicted of two counts of First Degree Misdemeanor Manslaughter (DWI). Bell was sentenced to five years on each count and Judge Richard G. Van Dyck ran them consecutively. The notable aspects of the opinion include: 1) Overruling of State v. Breger, 1987 OK CR 98, 737 P.2d 1219, which held that DWI was properly charged as negligent homicide (Judge Van Dyck recognized the authority of Breger, but held that public policy had changed since that case was decided); 2) a finding of pervasive prosecutorial misconduct by Bret Burns and noting that the Court has twice before, in published opinions, found similar misconduct; 3) the prosecutor's use of a Power Point presentation during opening statement was erroneous because he used his own labels and captions on the photos; and 4) it was not error for the prosecutor to argue retrograde extrapolation, even though there was no scientific evidence presented on this subject, because it was fair comment on the evidence. HELD: Based on the prosecutorial misconduct, the sentences are modified to run concurrently.
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