State v. Ball

• Citation: 264 S.E.2d 844,164 W.Va. 588
• Decision Date: 01 April 1980
• Docket Number: No. 14074,14074
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Danny Lee BALL.

Page 844

264 S.E.2d 844

164 W.Va. 588

STATE of West Virginia v. Danny Lee BALL.

No. 14074.

Supreme Court of Appeals of West Virginia.

April 1, 1980.

Syllabus by the Court

1. W.Va.Code, 17C-5A-5(c) (1968), which provides that one tenth of one percent or more, by weight, of blood-alcohol in the defendant's system shall be admitted as prima facie evidence of intoxication, is constitutional since the proven fact that a person had a blood-alcohol concentration of at least one tenth of one percent proves the presumed fact that a person is intoxicated.

2. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

Ward & Cline, John L. Ward and Michael R. Cline, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Chief Justice:

The appellant, Danny Lee Ball, was arrested on 25 July 1976 in front of the Cold City Carry-Out near Danville, West Virginia. The arresting officers testified that they had observed the appellant leave the Cold City Carry-Out, enter his pickup truck, start the truck, and pull it forward and backward several times, at which point they arrested him for drunk driving. It is undisputed that the appellant was arrested on a private parking lot. The appellant was convicted of drunk driving and sentenced to four months in the county jail.

Two assignments of error must be addressed by the Court. First, appellant argues that W.Va.Code, 17C-5A-5(c) (1968) establishes an impermissible presumption contrary to State v. Pendry, W.Va., 227 S.E.2d 210 (1976) when it says:

Evidence that there was, at that time, ten hundredths of one percent or more, by weight, of alcohol in his blood, shall be admitted as prima facie evidence that the person was under the influence of intoxicating liquor.

Second, the appellant argues that his arrest upon a private parking lot for violation of W.Va.Code, 17C-5-2(a) (1976) is illegal because W.Va.Code, 17C-2-1 (1972) provides that chapter 17 shall apply to the operation of vehicles only upon streets and highways except where otherwise specifically provided.

I

We do not find W.Va.Code, 17C-5A-5(c) (1968) unconstitutional because it provides that one tenth of one percent or more, by weight, of blood-alcohol shall be admitted as prima facie evidence of intoxication. ¹ State v. Pendry, supra, requires the State to prove beyond a reasonable doubt any material element of the crime with which the defendant is charged. In Pendry the instruction told the jury that the defendant intended the consequences that resulted from his use of a deadly instrument.

We have been careful to limit the use of presumptions when they supply a material element of the crime, particularly when they supply an element which requires intent. In State ex rel. Cogar v. Kidd, W.Va., 234 S.E.2d 899 (1977) we found a statutory presumption that a defendant intended to appropriate funds if he failed to pay over or account for property to be unconstitutional since it relieved the State of the duty to prove a material element of the crime of embezzlement. Similarly, in Pinkerton v. Farr, W.Va., 220 S.E.2d 682 (1975) we declared a conspiracy statute (the Red Men's Act) unconstitutional because it stated that being present and aiding and abetting in certain criminal acts automatically made the defendant guilty of conspiracy, unless he could produce evidence to the contrary.

Driving under the influence of alcohol, however, is not a common law crime like embezzlement or conspiracy which requires the proof of the element of intent, nor for that matter a common law crime like murder which requires the proof of elements such as malice which have historical definitions developed over hundreds of years. ² The State need not prove that the driver intended to get drunk, or that he was aware of the act of driving while drunk; the State need only establish that the defendant was drunk. The statute in question does not relieve the State from the duty of proving that the driver had the requisite one tenth of one percent alcohol in his system; it simply removes the necessity of providing an expert at each trial to testify to the effect of that percentage of alcohol upon the defendant's ability to drive.

W.Va.Code, 17C-5A-5(c) is, in effect, a definition of intoxication. There is ample medical authority to indicate that the blood-alcohol content set forth in the statute impairs the reflexes of human beings to such an extent that they present a danger when driving. ³ In effect, we may say that the logical connection between the proven fact of requisite blood-alcohol content and the presumed fact of intoxication is that the first demonstrates the second. While the jury may choose to disbelieve that a particular individual with one tenth of one percent, by weight, of alcohol in his blood was under the influence of intoxicating liquor, this percentage of alcohol alone is sufficient to support a jury finding of guilt. ⁴ If the Legislature had chosen to make it a crime for any person to drive upon the highways with one tenth of one percent or more, by weight, of alcohol in his blood, they most certainly could have done so. ⁵ While the statute may be inartfully phrased, this is its overall effect. Consequently we hold that W.Va.Code, 17C-5A-5 is not unconstitutional under any of the principles set forth in State v. Pendry, supra.

II

We do, however, agree with the appellant that W.Va.Code, 17C-2-1 (1972) which says:

The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon streets and highways except:

(1) Where a different place is specifically referred to in a given section.

does modify W.Va.Code, 17C-5-2(a) (1976) which says:

It is unlawful and punishable as provided in subsections (c), (d) and (e) of this section for any person to drive any vehicle in this State while: (1) He is under the influence of alcohol.

The State argues that the intent of the current version of the statute is to remove the former requirement that a person be upon a highway to be prosecuted for drunk driving. ⁶ The earlier version of W.Va.Code 17C-5-2 (1957) said:

It is unlawful and punishable as provided in subsection (c) of this section for any person who is under the influence of intoxicating liquor to drive any vehicle on any highway of this State . . . .

However, penal statutes must be strictly construed ⁷ and notwithstanding our own inferences with regard to the Legislature's intent in changing the language of this particular section, we must find that W.Va.Code, 17C-2-1 (1972) requires that if chapter 17C is to apply elsewhere than upon streets and highways a different place must be specifically set forth. In the criminal law the question is never what the Legislature intended, but rather what a person of ordinary intelligence would infer from a plain reading of the statute involved. In this regard W.Va.Code, 17C-5-2 (1976) does not specifically refer to another place. Consequently, we must hold that the charge of driving while under the influence of intoxicating liquors cannot be sustained against the appellant because the State was unable to show that he was drunk while on a street or highway. ⁸

Therefore, for the reasons assigned above the judgment of the Circuit Court of Boone County is reversed.

Reversed.

1 The U. S. Supreme Court has wrestled with the problem of presumptions in criminal legislation numerous times in the past few years. In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the Supreme Court established the so-called "rational connection" standard for reviewing the validity of statutory presumptions under the requirements of constitutional due process. This definition was refined in the field of criminal legislation so that "(t)he upshot of Tot (and subsequent cases) is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Thus, possession of heroin may be presumed to be illegally imported since it is not manufactured in the United States, while the possession of cocaine may not be so presumed, since cocaine is produced in the United States. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which declared a statutory presumption requiring a defendant to prove that he acted in the heat of passion or sudden provocation in order to reduce homicide to manslaughter to be unconstitutional, has been subject to numerous interpretations regarding its evaluation of the use of presumptions in the criminal field. Our own Supreme Court, in State v. Pendry, supra, concluded that Mullaney stood for three general propositions:

(1) In a criminal case, the State is required to carry the burden of proving beyond a reasonable doubt every material element of the crime with which the defendant is charged; (2) In carrying its burden of proof beyond a reasonable doubt, the State is not entitled to an instruction which requires a jury to accept as proved beyond a reasonable doubt any element of the criminal offense charged and this concept embraces presumptions (more properly inferences) as to which the jury may be instructed; and (3) A defendant in a criminal case cannot be required to present evidence either in terms of going forward with the evidence or in terms of bearing the burden of persuasion in connection with any material element of the crime charged.

The U. S. Supreme Court has recently withdrawn from such a rigid reading of...