Abshire v. State, M--76--230

Decision Date16 June 1976
Docket NumberNo. M--76--230,M--76--230
Citation551 P.2d 273
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
PartiesMyrl Clinton ABSHIRE, Appellant, v. The STATE of Oklahoma, Appellee.
MEMORANDUM OPINION

BUSSEY, Judge:

Appellant, Myrl Clinton Abshire, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Cleveland County, Case No. CRM--75--1216, for the offense of Driving While Under the Influence of Intoxicating Liquor, in violation of 47 O.S.1971, § 11--902. The jury fixed his punishment at ten (10) days' imprisonment in the County Jail, and from said judgment and sentence an appeal has been perfected to this Court.

Briefly stated, at the trial the evidence presented by the State tended to establish that in the early evening of September 23, 1975, the arresting officer observed defendant committing traffic violations and driving his motor vehicle in an erratic manner upon a roadway in Norman, Cleveland County. Defendant displayed symptoms indicating that he was under the influence of intoxicating liquor, and voluntarily submitted to a breathalyzer test which revealed that the concentration of alcohol within his blood was 0.23% By weight per volume.

Defense testimony was presented tending to establish that defendant did not commit any traffic violations in the presence of the arresting officer, and that the symptoms which caused witnesses for the State to conclude that he was intoxicated were, in fact, attributable to his high blood pressure, a nervous condition and arthritis. However, defendant did admit to having had one drink of bourbon shortly before his arrest. Defendant further contended that he was not informed that he could refuse the breathalyzer test and that he did not voluntarily submit to such testing.

In his sole assignment of error defendant contends that the breathalyzer test results were rendered inadmissible for failure of the State to comply with 47 O.S.1971, § 752, providing in pertinent part that:

'. . . A written report of the results including full information concerning the test or tests taken at the direction of the law enforcement officer Shall be made available to the subject. . . .' (Emphasis added)

The evidence presented was conflicting as to whether the defendant was furnished a written report of the breathalyzer test results. The officer who administered the test...

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  • Kelln v. Dowling
    • United States
    • U.S. District Court — Western District of Oklahoma
    • November 20, 2017
    ... ... OF OKLAHOMA November 20, 2017 MEMORANDUM OPINION Petitioner, Matthew James Kelln, a state court prisoner, has filed a petition for a writ of habeas corpus seeking relief pursuant to 28 ... ...
  • Johnson v. State, F-80-100
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 12, 1982
    ...be interpreted in accordance with their plain ordinary meaning to effectuate the purpose intended to be accomplished. See Abshire v. State, 551 P.2d 273 (Okl.Cr.1976). The generally accepted meaning of the term "remuneration" is to pay an equivalent for, i.e., to reimburse for a service, lo......
  • Wallace v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 18, 1997
    ...and no room is left for construction and interpretation where the language employed is clear and unambiguous." Abshire v. State, 551 P.2d 273, 274 (Okl.Cr.1976). The use of the conjunctive "and" between the two parts of this subsection indicate both portions must be present before this Cour......
  • Johnson v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 1, 2013
    ...and interpretation where the language employed is clear and unambiguous.” Id. quoting Abshire v. State, 1976 OK CR 136, ¶ 6, 551 P.2d 273, 274. ¶ 11 If the purpose of § 11–604 is to prevent traffic accidents, then the term “affected” must be read somewhat broadly. The Legislature's choice o......
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