State v. Dodson
| Decision Date | 04 June 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 496 S.W.2d 272 |
| Parties | STATE of Missouri, Respondent, v. Dennis A. DODSON, Appellant. 26278. |
| Court | Missouri Court of Appeals |
Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for appellant.
Rupert G. Usrey, Holt County Pros. Atty., Oregon, for respondent.
Before WASSERSTROM, P.J., and SHANGLER and SWOFFORD, JJ.
Defendant appeals from conviction by a jury and a fine of $100.00 for driving while intoxicated in violation of § 564.440 RSMo 1969, V.A.M.S. It was questionable whether the Points Relied Upon set forth in defendant's brief on appeal should be considered as in compliance with Rule 84.04(d), V.A.M.R. However, no complaint is made by the State, and indulgently construed the points can be read to allege error by the trial court in not sustaining defendant's motion for acquittal at the close of all the evidence. This assignment of error must be sustained.
On the afternoon of September 18, 1971, defendant had two bottles of beer in a tavern some time between 3 and 5 p.m. At about 7 p.m. he stated for home by highway, but shortly before 9 p.m. he ran off the highway into a ditch in a one-car accident.
Mr. and Mrs. Steven Cotton came by the scene of the accident. Mr. Cotton assisted defendant out of his automobile and into the Cotton car, and Cotton then drove defendant home.
At about 9:40 p.m. Sergeant Matthews of the State Highway Patrol came to defendant's home to interrogate him about the accident. Matthews looked through a window and saw defendant lying on a bed fully clothed in the lighted bedroom. Matthews made sufficient noise to arouse defendant who then went to the front door and let the officer in. Matthews testified that defendant's eyes were bloodshot, he was unsteady on his feet, his speech was very thick to the point of being incoherent and he smelled heavily of alcohol. Based upon those observations, Matthews testified that in his opinion defendant was intoxicated at the time of that observation. Matthews also testified that defendant stated to him that he, the defendant, had not been involved in any accident, that he had not been operating his car, and that he had never left home that entire evening.
Defendant testified in his own behalf. He admitted his consumption of two bottles of beer in the afternoon and also the presence of unopened beer cans in his car, but he denied being intoxicated at any time up to or including the occurrence of the accident. He explained the accident on the basis of a sudden flat tire. Defendant further testified that as a result of being shaken up in the accident his neck hurt, and when he arrived home he took three big drinks of whiskey before lying down. Defendant denied having told Sergeant Matthews that he had not been in an accident and stated instead that he made an affirmative response in that respect.
The only other pertinent evidence introduced by either side was that of Mr. Cotton. On behalf of the defendant, he testified in direct examination that when he helped defendant out of his automobile he detected no odor of alcohol, that defendant was able to walk by himself, and that he gave no sign or smell of having consumed alcohol. However, on cross-examination, he admitted that he could not say definitely one way or another whether defendant was intoxicated at the scene of the accident. While this cross-examination may have effectively impeached the direct testimony of this witness, Cotton's testimony certainly does not affirmatively prove defendant's intoxication at the scene of the accident.
The elements of the offense charged in this case are: (1) that defendant operated a motor vehicle; and (2) that he was intoxicated while so doing. State v. Chester, 445 S.W.2d 393 (Mo.App.1969); State v. Grove, 204 S.W.2d 757 (Mo.1947). There is no question here as to the first of those elements. That leaves as the sole issue the question of whether defendant was intoxicated at the time when he was driving. A review of the record in this case compels the conclusion that there was not sufficient evidence to support a finding to that effect.
The State relies primarily on the testimony of Sergeant Matthews. Matthews' testimony was amply sufficient to show that defendant was intoxicated at his home at 9:40 p.m. However, that was not the crucial time at which intoxication had to be shown. Rather, it was incumbent upon the State to prove that defendant was intoxicated at and before 8:55 p.m., while he was driving his vehicle. The fact that defendant was intoxicated at 9:40 p.m. is not substantial proof as to his condition approximately one hour previously.
This proposition was so ruled on substantially identical facts in State v. McKenzie, 204 Iowa 833, 216 N.W. 29, l.c. 31 (1927). In that case the defendant had an accident on the highway, after which he returned to his hotel in town. About an hour later the town mayor and the marshal called on him at the hotel concerning the accident, and both testified that defendant was drunk at the time of that conference. The defendant, on the other hand, testified that he was not intoxicated while driving his car, but that he did have a drink after he got back to the hotel following the accident. The Iowa Supreme Court held that this evidence was insufficient to support a conviction for drunken driving:
'. . . (T)he evidence introduced in this case was not sufficient to take this question to the jury.'
A similar ruling was made in State v. Liechti, 209 Iowa 1119, 229 N.W. 743 (1930). In that case the defendant had an...
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State v. Armstrong, 56628
...was little or no evidence of intoxication at the earlier time. United States v. DuBois, 645 F.2d 642 (8th Cir.1981); State v. Dodson, 496 S.W.2d 272 (Mo.App.1973); Blevins v. State, 38 Ala.App. 584, 90 So.2d 98 (1956). However, if the defendant had no access to alcohol or denies drinking du......
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U.S. v. DuBois
...103 Ill.App.2d 128, 243 N.E.2d 427 (1968); State v. Creighton, 201 N.W.2d 471 (Iowa 1972) (and cases cited therein); State v. Dodson, 496 S.W.2d 272 (Mo.Ct.App.1973); State v. Kaloustian, 212 N.W.2d 843 (N.D.1973). Cf. Stephens v. State, 127 Ga.App. 416, 193 S.E.2d 870 (1972) (no indication......
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State v. Hill
...was no evidence that appellant did not become intoxicated between the accident and the arrest. Appellant relies upon State v. Dodson, 496 S.W.2d 272 (Mo.App.1973), and State v. Liebhart, 707 S.W.2d 427 (Mo.App.1986). Both of these cases are inapposite. In both cases there appeared to be a s......
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State v. Farmer
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