State v. Byers
| Decision Date | 18 May 1976 |
| Docket Number | No. 13591,13591 |
| Parties | STATE of West Virginia v. Isaac BYERS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Under the provisions of W.Va.Code, 17C--5A--1, As amended, a law-enforcement officer may arrest a person and a test for blood alcohol may be administered incident thereto at the direction of the arresting officer who has reasonable grounds to believe the person to have been driving a motor vehicle upon a public highway while under the influence of intoxicating liquor.
2. An arrest is the taking, seizing or detaining of the person of another (1) by touching or putting hands on him; (2) by any act or speech that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested.
3. To make a lawful warrantless arrest of a person for a violation of Chapter 17C of the Code of West Virginia, a law-enforcement officer must effect some actual or constructive restraint of the person by taking him immediately before a justice of the peace or court having jurisdiction of the offense when the offense is one for which such procedure is required by W.Va.Code, 17C--19--3, As amended, or, in all other instances, by issuing a citation as required by W.Va.Code, 17C--19--4, As amended.
4. A warrantless arrest for operating a motor vehicle under the influence of intoxicating liquor is lawful only when a law-enforcement officer with reasonable grounds to believe the offense to have been committed effects an actual restraint by taking the offender immediately before a justice of the peace or court having jurisdiction of the offense or effects a constructive restraint by the issuance of a citation when for good cause he cannot comply with the provisions of W.Va.Code, 17C--19--3, As amended.
5. Good cause, excusing noncompliance with W.Va.Code, 17C--19--3, As amended, and justifying implementation of the arrest procedures set forth in W.Va.Code, 17C--19--4, As amended, includes such reasons as a justice not being readily available or injuries to the offender which require immediate medical attention or hospitalization.
6. This Court will not consider an error which is not preserved in the record nor apparent on the face of the record.
7. Where there is adequate evidence reflecting that a defendant, who was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication and had consumed an alcoholic beverage, a trial court may submit for jury determination the question of whether the defendant committed the offense of driving a motor vehicle while under the influence of intoxicating liquor.
W. H. Ballard, II, Ballard & Brumfield, Welch, for Isaac Byers.
Chauncey H. Browning, Jr., Atty. Gen., Charleston, E. Leslie Hoffman, III, Asst. Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for the State.
An automobile driven by the defendant, Isaac Byers, struck another vehicle on State Route 102 in McDowell County. When the defendant was in the hospital emergency room for treatment of injuries sustained in the accident, a state trooper directed a physician to extract a blood sample from the defendant for chemical analysis of its alcohol content. Fourteen days after the accident, a warrant for the defendant was issued, charging him with driving a motor vehicle upon a public highway under the influence of intoxicating liquor. Subsequently, the defendant was indicted for the offense and convicted by a jury in the Intermediate Court of McDowell County. The trial judge sentenced the defendant to six months in the county jail, fined him $50 and suspended his driver's license for six months. The judgment was affirmed on appeal to the Circuit Court of McDowell County.
The critical issue here is whether the results of the blood test were inadmissible at trial because the test was not administered incident to a lawful arrest as required by W.Va.Code, 17C--5A--1, As amended. Additionally, the defendant assigns as error: (1) the giving or refusal to give certain instructions to the jury; (2) the prejudicial remarks of the prosecuting attorney during his closing argument; and (3) the failure of the trial court to direct a verdict at the close of the State's evidence or at the conclusion of all the evidence.
The accident occurred on April 14, 1973, between Welch and Gary in McDowell County. The defendant was proceeding north on State Route 102 toward Welch when he collided with a southbound car driven by William Sanders. The point of impact occurred in the southbound lane according to Sanders' testimony, a fact corroborated by a State Trooper and another witness.
Otis Snow, who witnessed the accident from a window in his home, was the first person to arrive at the scene. He found the defendant unconscious and slumped over the wheel of the car. Troopers Meadows and Pope arrived at the scene approximately twenty-five minutes after the accident. Meadows described the defendant as 'groggy', 'sleepy', but conscious with his eyes open and sitting upright in the vehicle. The defendant made no response to his questions. Trooper Pope described the defendant's condition at the scene as . He stated that Byers was 'slumped down in the seat' and that when he leaned into the vehicle, he detected a strong odor of an alcoholic beverage.
Meadows volunteered that the defendant 'appeared to be intoxicated'. He testified that he smelled the odor of an alcoholic beverage about the defendant at the scene and at the hospital. The two ambulance attendants who took the defendant to the hospital testified they smelled alcohol about the defendant.
On cross-examination Meadows admitted that he had testified at the preliminary hearing that there was liquid on the floor of the car from which the odor of alcohol emanated. The trooper did not have the liquid nor the paper cups found in the vehicle analyzed for alcohol. He admitted that the odor in the car might have resulted from antifreeze leaking from the air-conditioner. He examined the vehicle and found no whiskey bottles or beer cans.
The two troopers saw the defendant in the emergency room sometime after 11:00 p.m., at least 45 minutes after the accident. Both troopers testified that the defendant was told he was being 'charged' with driving under the influence of alcohol and that he was advised of the provisions of the implied consent law regarding suspension of license upon refusal to consent to a blood test.
It was admitted that no citation was issued the defendant on the night of the accident. An arrest warrant was not issued until April 28, 1973, fourteen days after the accident. Trooper Meadows testified that he waited to obtain the warrant in order to 'get all my evidence together because I knew there would be a preliminary hearing.' He further stated that he might have told the defendant he was under arrest when Byers came to see him after his discharge from the hospital. Meadows testified that he was 'suspicious' about the defendant's intoxication but that his delay in obtaining a warrant was 'not exactly' and 'not' because he was awaiting the results of the blood test.
Trooper Pope stated, however, that there were 'reasons to believe' and 'we believed' that the defendant was intoxicated. He testified that the blood test was performed 'to confirm our belief' that the defendant was intoxicated.
The two troopers and the nurse on duty in the emergency room testified concerning the procedures employed in extracting the blood sample. Trooper S. W. Kanek, a chemist for the Department of Public Safety, was permitted to testify over objection that the blood alcohol content was .24%.
The defendant's case was predicated upon the theory that any alcohol in his blood was attributable to a prescription cough syrup which he took routinely. The defendant testified that he and his grandson had trimmed tree limbs the morning of the accident and that he had become ill. According to the testimony of Byers, his wife, his daughter and his grandson, he had spent the rest of the day on the couch. Byers and his family denied that he had consumed any intoxicating beverages that day. The medicine which Byers took routinely for a chest condition was by volume 22% Alcohol.
Byers testified that he had taken three doses of the medicine during the day, and that the medicine when mixed with saliva smelled 'just like whiskey'. He related that he had taken his grandson to Gary and then to a friend's house. Byers and his grandson were accompanied by Johnny Pearce. Pearce, who was in the vehicle at the time of the accident, testified that the defendant was not intoxicated and that neither of them had drunk anything from the time they left Welch.
Mrs. Byers, and the defendant's grandson were present in the emergency room when the police talked with the defendant. They corroborated the defendant's statement that he was not told of any charge of driving under the influence of alcohol, but was merely informed that if he refused to consent to the test, his license would be suspended. Both Byers and his grandson stated that Meadows testified at the preliminary hearing that he had told the defendant he would arrest him if the results of the test were positive.
After the warrant was issued, a preliminary hearing was held before the justice of the peace and the defendant was subsequently indicted and tried for the offense in the Intermediate Court of McDowell County.
Prior to the trial, counsel for the defendant moved to suppress the results of the blood test on the theory that it had not been administered incident to a lawful arrest. The court overruled the motion on the ground that Section 5 of the implied consent law 1 was clear and provided that if the test was completed within two hours after the alleged acts the results were admissible.
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