State v. Clarkston, WD

• Decision Date: 24 February 1998
• Docket Number: No. WD,WD
• Citation: 963 S.W.2d 705
• Parties: STATE of Missouri, Respondent, v. Gary F. CLARKSTON, Appellant. 54044.
• Court: Missouri Court of Appeals

Page 705

963 S.W.2d 705

STATE of Missouri, Respondent, v. Gary F. CLARKSTON, Appellant.

No. WD 54044.

Missouri Court of Appeals,

Western District.

Feb. 24, 1998.

F. Randall Waltz, III, Waltz & Jordan, Jefferson City, for appellant.

Michael J. Yost, Asst. Pros. Atty., Cole County, Jefferson City, for respondent.

Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.

LAURA DENVIR STITH, Presiding Judge.

Mr. Clarkston appeals his conviction of driving while intoxicated. He argues that the jury was improperly permitted to find him guilty if he was suffering from a reaction to a combination of alcohol and insulin, and that as a matter of public policy this should not provide a basis for conviction. He also argues that the evidence did not show that he had insulin in his system or that it contributed to his alleged intoxication. He further alleges that the trial court erred in permitting the police officers to inform the jury that he had refused to take a breathalyzer test, because another court had already held that his driver's license could not be revoked based on this refusal since he was not given an adequate warning that his refusal would result in immediate revocation of his driver's license.

We find that Mr. Clarkston's refusal of the breathalyzer test and his refusal to perform various field sobriety tests was relevant and admissible to show his conduct and the basis on which the officers concluded he was intoxicated, despite the fact it could not be used as a basis for revocation of his license. We agree with Mr. Clarkston, however, that the instruction improperly permitted him to be convicted based on the mere fact that he took insulin and alcohol. While the expert evidence did show that alcohol and an overreaction to too much insulin could combine to cause intoxication, the evidence did not show that Mr. Clarkston was suffering from a reaction to too much insulin at the time of the accident; the evidence showed he had not taken insulin for fourteen and one-half hours, and further showed that the type of reaction he allegedly had could be caused by too much exercise or too little food, and not just by too much insulin. Accordingly, we reverse and remand for a new trial.

We caution, however, that in any new trial, the fact that Mr. Clarkston may have become intoxicated with alcohol more readily because of his diabetes is not a defense to the charge of alcohol intoxication, any more than would be any other claim that a person should not be found guilty of driving while intoxicated with alcohol just because the person becomes intoxicated easily due to his or her weight, metabolism, or other physical characteristics. If the evidence shows that Mr. Clarkston was, in fact, intoxicated by the amount of alcohol he imbibed, then he is guilty of driving while intoxicated with alcohol even if that amount of alcohol would not have made a non-insulin taking diabetic intoxicated. ¹

I. FACTUAL AND PROCEDURAL HISTORY

Gary Clarkston is a diabetic. His diabetes is controlled by insulin which his doctor has prescribed for him to take in the morning and in the evening. On December 28, 1995, he took his morning insulin at 7 a.m. He ate lunch at approximately 11:30 a.m. He cleaned carpets in Mr. Bill Clarkston's house until around 7:30 or 8:00 p.m. that evening. He then went to the Knights of Columbus where he drank some beer. Sometime between 9:30 p.m. and 10:00 p.m. that evening, Mr. Clarkston's Jeep Cherokee collided with the rear of a Ford van which had been stopped at an intersection. Michael Nilges, the driver of the Ford van, approached Mr. Clarkston's vehicle immediately after the accident. Mr. Clarkston stared "straight ahead and down" and failed to respond to Mr. Nilges.

Within five minutes of the accident, Police Officers Chris Lindsey and Douglas Shoemaker arrived at the scene. When Officer Shoemaker approached Mr. Clarkston's vehicle, Mr. Clarkston was sitting in the driver's seat with the door open and the vehicle still running. The officer noticed the smell of alcoholic beverages on Mr. Clarkston and asked Mr. Clarkston to look at him. He noticed that Mr. Clarkston's eyes were watery, glassy, and bloodshot. Officer Shoemaker performed the horizontal gaze nystagmus test, which Mr. Clarkston failed. Mr. Clarkston refused to take any other field tests, claiming he was "too drunk." He also refused to submit to a chemical breath test. When Officer Shoemaker asked Mr. Clarkston whether he had been drinking, Mr. Clarkston responded that he had drunk eight or nine beers. Mr. Clarkston told Officer Lindsey, however, that he had drunk only two beers during the evening. After he was arrested, when asked about this discrepancy, Mr. Clarkston explained that he had drunk eight or nine beers at home and then two more at the Knights of Columbus.

A. Revocation of License and Motions in Limine.

The Director of Revenue revoked Mr. Clarkston's driver's license for refusing to submit to a breath test for blood alcohol content. On February 14, 1996, in Clarkston v. Director of Revenue, CV396-19AC, this revocation was set aside by the court below based on a failure to adequately warn Mr. Clarkston that his license would immediately be revoked if he refused to consent to this test. Although the case on which the court relied in reaching this result has since been overruled, the propriety of that decision is not before us on this appeal.

On March 5, 1996, Mr. Clarkston was charged by information with the class A misdemeanor of driving while intoxicated under the influence of alcohol. Mr. Clarkston filed a motion requesting the suppression of:

[a]ny evidence of or testimony about defendant's alleged refusal to submit to a chemical breath test for blood alcohol content on or about December 28, 1995. This prejudicial evidence is inadmissible and collaterally estopped from being admitted into evidence because this court in Gary F. Clarkston v. Janette Lohman, Director of Revenue, Case No. CV396-19AC, ruled on February 14, 1996, that defendant did not refuse to submit to the chemical breath test for reasons stated in the court's judgment entry, a true copy of which is attached hereto and identified as Exhibit A.

Mr. Clarkston's motion further asked, inter alia, to suppress statements or admissions made by the defendant, because they were involuntarily made, and testimony concerning the horizontal gaze nystagmus test, "unless it [could] be shown the officer was properly trained, the test correctly given, and the results accurately interpreted." This motion was overruled, after a hearing, on July 30, 1996.

On December 5, 1996, an amended information was filed, charging Mr. Clarkston with the class A misdemeanor of driving while intoxicated while under the influence of alcohol and a combination of alcohol and insulin. On December 10, 1996, Mr. Clarkston filed a second motion to suppress and/or exclude evidence. At this time, Mr. Clarkston also filed a request for specific findings and rulings on the voluntariness of statements he had made. On December 11, 1996, the court held a hearing on this second motion. Mr. Clarkston testified that he did not know whether he had made the statements he allegedly made to the police because at "that time I'm under the impression of a[sic] insulin reaction, and sometimes I say things and you can tell me I did something or I was somewhere, and I wouldn't have the slightest idea what you're talking about." He further testified that he was a Type I diabetic, took insulin, and had a history of insulin shock, or "neuroglycopenic reactions." The court denied the motion.

B. Expert Testimony as to Effects of Insulin.

The trial began on December 11, 1996. In his opening statement, the prosecutor stated that "at the very least, [Mr. Clarkston] was under the influence of alcohol and a reaction with insulin. [It is the] State's contention that there was no insulin reaction, but at the very least the alcohol combined with his insulin reaction to make him intoxicated, which is enough for you to find him guilty." Officer Shoemaker testified that Mr. Clarkston had told him he was an insulin-taking diabetic, and that he had last taken his insulin at 7:00 a.m. the morning of the accident.

The defense read the deposition of Peter Boyer, Mr. Clarkston's physician, into evidence. This testimony indicated that Mr. Clarkston was a Type I diabetic for whom Dr. Boyer had prescribed insulin to be taken in the morning and in the evening. Dr. Boyer also testified that Mr. Clarkston had previously had problems with hypoglycemia caused by his diabetes. He testified that an insulin-taking diabetic could have two types of hypoglycemic reactions from a number of causes, including a reaction to taking too much insulin, eating too little food while taking insulin, and exercising too much in light of one's food and insulin level. Dr. Boyer testified that Mr. Clarkston has had both types of hypoglycemic reactions. The first makes the person weak, feel shaky, and have headaches; the person can recognize these symptoms and make them go away by eating sugar. The second reaction, called neuroglycopenia, occurs more rarely, but it occurs without prior warning. Because its symptoms may mimic those of intoxication, Dr. Boyer said it "is recommended that a Type I diabetic wear identification because it can be misinterpreted as intoxication, the reaction they have." ²

Dr. Boyer was also asked about the synergistic effects, if any, of alcohol and insulin. He testified that the fact a person takes insulin would not directly increase the effect of alcohol on the person, but would increase the level of sugar in the blood. Therefore, if a person is having a hypoglycemic reaction from too much insulin, too little food or too much exercise, even a very small amount of alcohol could cause him to become very intoxicated. Paraphrasing, Dr. Boyer said that if an insulin-taking diabetic is having a hypoglycemic (low blood sugar)...