Hammer v. Town of Jackson
| Decision Date | 18 July 1974 |
| Docket Number | No. 4349,4349 |
| Citation | 524 P.2d 884 |
| Parties | William Ross HAMMER, Appellant (Defendant below), v. TOWN OF JACKSON, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John T. Pappas, of Vidakovich & Pappas, P. C., Lander, for appellant.
Donald Terry Rogers, Town Atty., Jackson, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.
The appellant, William Ross Hammer, was convicted in municipal court for two misdemeanor violations of ordinances of the Town of Jackson. One conviction was for driving a motor vehicle while under the influence of intoxicating liquor; the other was for resisting an officer. On appeal to the district court a jury was waived and a trial do novo was had. The convictions were upheld. The case is before us on an appeal by Hammer from his district court convictions.
The trouble in dealing with the appeal is that the appellant and his attorney insist on retrying the case and using as evidence in the retrial the testimony of appellant and his witnesses, instead of the testimony of the prosecution and its witnesses. We must assume that evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. 1 This means we need only decide whether there was substantial evidence favorable to the prosecution, without discussing and reviewing such evidence as may have been offered by the defendant.
The errors assigned by appellant for reversal of the district court judgment are these:
1. The defendant did not receive a fair and impartial trial due to the bias and prejudice of the trial judge.
2. The judgment and sentence are contrary to law and a denial of due process of law because (a) the defendant was not advised of his right to a chemical test of his blood, breath or urine when arrested for driving a motor vehicle while under the influence of intoxicating liquor, and (b) the defendant was denied a chemical test of his breath when requested by defendant following his arrest for driving a motor vehicle while under the influence of intoxicating liquor.
3. The conviction of the defendant of the misdemeanor of driving a motor vehicle while under the influence of intoxicating liquor to a degree which rendered him incapable of safely driving a motor vehicle is not supported by competent evidence.
4. The conviction of the defendant of the misdemeanor of resisting an officer is not supported by competent evidence and is contrary to law in denying the defendant the right of self defense when subjected to police brutality.
1. The appellant cites no case authority, text authority, nor logic to support his proposition that he did not receive a fair and impartial trial due to the bias and prejudice of the trial judge. As we review the record, the defendant had a fair and impartial trial all the way through. Moreover, appellant concedes in his brief that the district court judgment is supported in part by the testimony of two law enforcement officers who appeared on behalf of the town. Appellant merely states that he seriously questions the credibility of this evidence. No lack of credibility is shown, however; and the entire question of credibility was one for the trial judge and is not something for us to pass upon.
2(a) and (b). Although appellant asserts that the judgment and sentence are contrary to law and a denial of due process, nothing is called to our attention from the record and no authority is cited in support of this proposition. We find nothing in the record to support appellant's assertions in 2(a) and 2(b).
The error assigned by appellant in 2(a) and 2(b) is a good example of how the appellant attempts to take the testimony offered on behalf of the defendant, ignoring the evidence favorable to the successful side. The evidence we are bound to accept and believe is that Hammer did not request a breathalizer test or other test of his blood, breath or urine; and that a blood, breath or urine test was never refused to Hammer. There was testimony that the arresting police officer, Thomas Jordan, on his own initiative, made inquiry by radio as to whether the sheriff's office had ampoules for the breathalizer machine. He was informed there were no ampoules available.
Appellant cites no authority which requires that a person arrested for the offense of driving while under the influence of intoxicating liquor shall, in every instance, be administered a chemical test of his blood, breath or urine. Nor does appellant cite authority for his contention that, if a test is requested by an arrested person, it has to be given and the failure to give it invalidates the arrest.
If the Town of Jackson were seeking to invoke the provisions of the Implied Consent Law (§§ 31-247.1 to 31-247.6, W.S.1957, 1973 Cum.Supp.) in order to suspend appellant's license or to introduce evidence of a chemical test of the appellant's blood, breath or urine, then the Implied Consent Law would apply. 2 Otherwise it has no application in this case.
The Implied Consent Law does not require that every person arrested for the offense of driving while under the influence of intoxicating liquor be given a chemical test of his blood, breath or urine. It merely provides that such a person is deemed to have given his consent and provides certain guidelines for the testing in the event that it is used or sought to be used. § 31-247.2(a), W.S.1957, 1973 Cum.Supp. In the instant case the Implied Consent Law was not used nor sought to be used.
3. In assignment of error 3, appellant claims the conviction of defendant for driving a motor vehicle while under the influence of intoxicating liquor is not supported by competent evidence. There is no merit at all in this contention.
There is evidence in the case that, during the night in question, appellant and his companion had been drinking in local bars for approximately five or six hours, and by appellant's admission he had at least six beers to drink in that period of time.
Officer Jordan testified that based upon his observations of appellant and upon the failure of the appellant to successfully perform a field sobriety test, in his opinion the appellant was under the influence of intoxicating liquor to the point where it hampered his ability to function normally, particularly with regard to his driving.
Deputy Sheriff Donald Francis, who assisted Officer Jordan in the ultimate arrest of Hammer, also testified that Hammer's speech was slurred; that he had a hard time making decisions and a hard time retaining what was going on; that there was the odor of alcoholic beverages emanating from Hammer; that he observed Hammer walking in an unstable manner; and that in his opinion Hammer was under the...
To continue reading
Request your trial
-
Com. v. Alano
...332 P.2d 549 (1958); State v. Sawyer, 382 A.2d 1051, 1052 (Me.1978); Ewing v. State, 300 So.2d 916, 920-922 (Miss.1974); Hammer v. Jackson, 524 P.2d 884, 887 (Wyo.1974); Annot., 95 A.L.R.3d 710 We note that the statement of agreed facts refers to the defendant's "right to have a blood alcoh......
-
Downs v. State
...made by the statement seems to have been used in a few Wyoming criminal cases recently, But only in Wyoming. Hammer v. Town of Jackson, 524 P.2d 884, 886 (1974); Shafsky v. State, 526 P.2d 60 (1974); Horn v. State, 554 P.2d 1141, 1145 (1976); Cullin v. State, 565 P.2d 445, 448 (1977). It is......
-
Montano v. Superior Court In and For Pima County
...an obligation mandating these tests." 42 Ohio St.2d at 353, 328 N.E.2d at 807. Finally, in another leading state case, Hammer v. Town of Jackson, 524 P.2d 884 (Wyo.1974), the Wyoming Supreme Court reached the same conclusion with regard to Wyoming's implied consent statute, declaring "The I......
-
TR v. Washakie County Dept. of Public Assistance and Social Services
...and give to the evidence of the successful party every favorable inference which may fairly be drawn from it. Hammer v. Town of Jackson, Wyo., 524 P.2d 884 (1974); Mellor v. Ten Sleep Cattle Co., Wyo., 550 P.2d 500 (1976); Allen v. Allen, Wyo., 550 P.2d 1137 (1976); and Douglas Reservoirs W......