State v. Brown
| Decision Date | 16 December 1985 |
| Docket Number | No. 15682,15682 |
| Citation | 109 Idaho 981,712 P.2d 682 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Bryan W. BROWN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Kim R. Lindquist, Weiser, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., A. Rene Fitzpatrick, Deputy Atty. Gen., for plaintiff-respondent.
Before WALTERS, C.J., SWANSTROM, J., and MCFADDEN, J. Pro Tem.
Bryan Brown appeals from a judgment of conviction for driving under the influence of alcohol. He was found guilty by a jury in the magistrate division and his conviction was upheld on appeal to the district court. We also affirm.
Brown was stopped by a police officer shortly after midnight for traveling at an excessive speed. While checking Brown's license, the officer detected the odor of alcohol on Brown. The officer asked Brown to perform several field sobriety tests. One test required Brown to recite the alphabet. After first whispering the alphabet, Brown refused the officer's request to repeat the test. Brown was then arrested and cited for driving under the influence. He was asked to submit to a blood alcohol test, which he did. The lab test showed Brown's blood alcohol content (B.A.C.) to be .15 percent. After being held overnight in the county jail, Brown was released on his own recognizance. He was subsequently arraigned and pled not guilty. However, a jury found him guilty, precipitating this appeal.
Brown essentially raises four errors on appeal, encompassing substantive, procedural and evidentiary issues. First, Brown contends the magistrate erred in ruling that the statute under which Brown was charged, I.C. § 49-1102, addresses only one crime and not two separate criminal acts. Next, he argues the magistrate erred in holding a post-arrest probable cause hearing at which neither Brown nor his counsel was present. Third, he asserts the magistrate erred at trial in sustaining an objection by the prosecutor to Brown's cross-examination of the arresting officer. Finally, he contends the prosecutor made an improper closing argument to the jury. We will discuss each of these issues in turn.
Brown's first issue on appeal concerns the magistrate's determination that the statute under which he was charged, I.C. § 49-1102, addressed only one crime, not two. 1 That statute provided:
Persons under the influence of alcohol, drugs or any other intoxicating substances.--(1) It is unlawful for any person who is under the influence of alcohol, drugs, or any other intoxicating substances, or who has 0.10 percent or more, by weight, of alcohol in his blood, urine or breath, as shown by chemical analysis of his blood, urine, breath, or other bodily substance, to drive or be in actual physical control of a motor vehicle within this state....
At trial, the prosecutor's case was based on the theory that Brown's B.A.C. was at least .10 percent. Brown objected that being charged with driving with a B.A.C. of at least .10 percent was a crime different from driving under the influence. Because the citation read "driving under the influence," Brown argued that he did not have notice that the prosecution would be relying on the blood alcohol standard. However, the magistrate ruled that violation of the alcohol concentration standard was synonymous with "driving under the influence," and allowed the prosecutor to proceed with his theory of proof.
Brown asserts that the statute created two separate violations--one for driving under the influence and the other for driving with a .10 percent B.A.C. He argues that the presence of a B.A.C. of .10 percent has nothing to do with whether a defendant is actually influenced by alcohol. We find this to be an unpersuasive argument. Other courts have acknowledged that "driving ability is significantly affected by a B.A.C. of .10% or more." See Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293, 301 (1985). Here the magistrate, and the district court on appeal, held that the statute defined only one charge with two alternative methods of proof. We agree with that holding. A reading of the statute convinces us that the legislature sought to prohibit driving while one is influenced by alcohol or drugs. A B.A.C. of at least .10 percent is proof, according to the legislature, of the influence of alcohol, where the accuracy or reliability of the test is not refuted. We agree with the conclusion of the court in Hernandez where, faced with a similar question regarding Pennsylvania's statute, the court declared: "We find that the .10% rule does nothing more than specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime." Hernandez, 488 A.2d at 301. Therefore, we hold that Brown has not established any reversible error based on the statutory interpretation issue.
Brown next contends his conviction should be set aside because of alleged errors relating to probable cause for his arrest. He does not suggest the police officer lacked probable cause for the arrest. Rather, he raises questions concerning the procedural aspects of a determination of probable cause by the magistrate.
The record discloses the following. After his arrest and release from jail, Brown personally appeared in court, pursuant to the citation issued by the officer, and pled not guilty. A few days later, counsel entered an appearance on Brown's behalf, reiterated the "not guilty" plea and demanded a trial by jury. Counsel also filed a motion to dismiss or, in the alternative, to suppress evidence obtained from Brown following his arrest--particularly all blood samples and blood alcohol test results. The motion was predicated on the ground that no probable cause hearing had been held either before or at the time Brown initially appeared following his arrest. The magistrate thereafter held a probable cause hearing, without notice to either Brown or to his counsel. The magistrate determined that there was probable cause for Brown's arrest, and that Brown was not prejudiced by the lack of a probable cause hearing prior to his initial appearance. The magistrate therefore denied Brown's alternative motion to dismiss or to suppress evidence.
Brown now asks that we consider the following questions: (1) Must a probable cause hearing be held before arraignment when a misdemeanor arrest occurs without a warrant? (2) May a post-arraignment probable cause hearing be held after counsel for a defendant has moved to dismiss or to suppress because a hearing was not held prior to arraignment? (3) May a magistrate hold a post-arraignment probable cause hearing in the absence of the defendant or his counsel and without notice to either of them?
We will answer these questions in this way: at the defendant's first appearance before the magistrate, the magistrate did not "order the defendant [to be] retained," nor order him "into custody nor require the defendant to post bond." Therefore, under I.C.R. 4 the magistrate was not...
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