Morgan v. City of Tulsa, M-82-440
| Decision Date | 02 June 1983 |
| Docket Number | No. M-82-440,M-82-440 |
| Citation | 664 P.2d 1067 |
| Parties | Charles Wilford MORGAN, Jr., Appellant, v. CITY OF TULSA, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Charles Wilford Morgan, Jr., appeals from his conviction and sentence in the Municipal Court of Tulsa Case No. 324622, of twenty-five days in jail and a fine of three hundred dollars ($300.00) plus court costs for Driving While under the Influence of Alcohol.
The sole prosecution witness, Tulsa Police Officer Dan Marshall testified that while on patrol in the City of Tulsa he had observed appellant's vehicle weaving back and forth between the right and the center lane. Officer Marshall followed the appellant for about three-quarters of a mile and the appellant continued to drift between the right and center lane of the divided four lane road. A total of six lane changes were observed. Officer Marshall stopped the appellant and then watched the appellant slowly exit his vehicle and with a very slow and staggering gait come back to the police car. The officer further observed that the appellant had a moderate to strong odor on his breath which the officer associated with an alcoholic beverage. The appellant also had blood shot eyes along with low and muffled speech. The officer placed the appellant under arrest.
In his first assignment of error appellant asserts that he was denied due process because when he requested a blood test the officer refused to have the test administered unless appellant would sign a consent document. Appellant argues that for this reason the trial court should have directed a verdict of acquittal or dismissed the case. We do not agree. Title 47 O.S.1981, § 751, which deals with a vehicle operator's implied consent to take a test for determining alcohol content of the driver's blood does not guarantee or mandate that such a test be given. Moore v. State, 533 P.2d 997 (Okl.Cr.1975). Furthermore, a sobriety test is not of itself a condition precedent to prosecution for driving while under the influence of intoxicants. Moore v. State, supra; State v. Carson, 512 P.2d 825 (Okl.Cr.1973). Inasmuch as there was no requirement to give the test, appellant was not entitled to a directed verdict of acquittal merely because the officer chose not to have the test performed. Accordingly we find this assignment of error to be without merit.
In his second assignment of error appellant argues that the trial court should have instructed the jury that the appellant was not required to sign the "permit" or consent form in order to be entitled to the blood alcohol test. Since we have heretofore held that appellant was not entitled as a matter of law to the blood test we find this second assignment of error to be without merit.
In his third assignment of error appellant argues that it was error for the trial court to instruct the jury that as many as five out of the six jurors could return a verdict. Appellant relies upon Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), wherein the United States Supreme Court held that a five...
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Parker v. State
...explained that the State may not suppress evidence, but need not gather evidence for the accused. Id. Similarly, in Morgan v. City of Tulsa (1983), Okla.Crim., 664 P.2d 1067, the court interpreted the Implied Consent Law to provide no guarantee for a chemical sobriety test, and refused to d......