State v. Franklin, 16142

Citation174 W.Va. 469,327 S.E.2d 449
Decision Date01 March 1985
Docket NumberNo. 16142,16142
Parties, 53 USLW 2471 STATE of West Virginia v. Larry Dale FRANKLIN.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Since the offense of driving under the influence of alcohol resulting in death under W.Va.Code 17C-5-2 [1981] may be, depending on the circumstances, either a felony or misdemeanor, a lawful, warrantless arrest may be made, upon reasonable suspicion of probable cause, at a hospital by an officer before whom the offence was not committed if the suspect has been taken to the hospital from the scene of the accident for emergency medical care.

2. Where the defendant was on trial for a felony under W.Va.Code 17C-5-2 [1981], the obvious presence of members of an organization dedicated to stiffer penalties for drunk drivers who advertised their association with that organization by wearing badges was reversible error.

Gilbert L. Hall, Charles Town, for appellant.

James E. Garvin, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Chief Justice:

Larry Dale Franklin was indicted by the grand jury of Berkeley County on 18 May 1982 under W.Va.Code 17C-5-2(a) [1981] for the felony charge of driving under the influence of alcohol, resulting in death. The appellant was found guilty, and, accordingly, sentenced to 1-3 years, fined, and required to pay court costs. Because, under the circumstances of this case, the activities of courtroom spectators constituted reversible error, we reverse the circuit court's holding and remand this case for a new trial.

On 5 March 1982, an aging 1969 Ford pickup truck collided with a Chevrolet Chevette. The Chevrolet's driver, Roger Moss, died of massive head injuries moments after the accident. The pickup truck, driven by the appellant, was actually owned by the wife of his companion that day, Richard Barnhart.

The appellant and Mr. Barnhart had spent a productive morning cutting and hauling wood. Mr. Barnhart testified that both the appellant and he had consumed over a six-pack of beer. Since Mr. Barnhart felt rather tipsy, he had asked Mr. Franklin to drive the pickup truck home along State Route 9, a narrow road traversing the undulating hills around Martinsburg. The record indicates that the road was dry, the sun was shining, and the air was crisp.

Nobody witnessed this accident, but the evidence suggests that the appellant, driving eastbound, collided with the westbound vehicle driven by Mr. Moss on or near the center lane, forcing the smaller vehicle off the road. The damage to Mr. Moss' vehicle was to the left, front fender, indicating that the appellant was considerably to the left of his side of the road. In any case, the appellant's truck stopped only when it struck a second westbound vehicle driven by a Mr. Largent who had been following some distance behind Mr. Moss' automobile.

This tragic accident was investigated initially by Trooper Ronald Jones who arrived, however, only after both Mr. Moss and Mr. Franklin were transported by ambulance to Martinsburg City Hospital. Mr. Moss was dead before he arrived at the hospital, while the appellant was treated for minor lacerations. Trooper Jones radioed Trooper Glen F. Macher, Jr. and informed him of the accident.

Trooper Macher went to the hospital immediately and found Mr. Franklin. The trooper testified that he had reasonable grounds to believe that Mr. Franklin had been driving under the influence of alcohol because the appellant's skin was flushed, because he mumbled and slurred his speech, and because Mr. Franklin was "mush-mouthed." In addition, he detected a "moderate" smell of alcohol on the appellant's breath. Trooper Macher read Mr. Franklin his Miranda rights, which the appellant acknowledged by signing a form but noted that he did not wish to speak to the trooper until he was advised by a lawyer.

The trooper then proceeded to fetch a blood-testing kit from his police cruiser and to describe to the appellant the use of a blood sample in testing for intoxication. The appellant signed a consent form to permit venipuncture and then a hospital technician proceeded to extract his blood. The sample was later tested by a chemist of the Criminal Investigation Bureau of the Department of Public Safety. The results were .17 percent alcohol by weight; the appellant was legally drunk.

I

The appellant maintains, in the first of his five assignments of error, that it was reversible for the circuit court to deny his motion to suppress the results of the blood alcohol test. The threshold question to be answered by this Court is whether Trooper Macher had sufficient grounds to place Mr. Franklin, under arrest. Trooper Macher knew that the appellant was the driver of a vehicle that was involved in a deadly accident. He also had reason to believe that the appellant had been drinking while driving a vehicle on the motorways of this state. As such the trooper had probable cause to suspect that the appellant was guilty of a felony under W.Va.Code 17C-5-2(a) [1981].

This Court discussed the requirements of a lawful warrantless arrest of a person for a violation of Chapter 17C of the Code of West Virginia in State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976). Although State v. Byers, was decided by this Court before the Legislature enacted W.Va.Code 17C-5-2 [1981], which made a drunk driver who killed another motorist in a highway accident possibly guilty of a felony, Byers addressed the question of a warrantless arrest.

Ordinarily a warrantless arrest may be made by an officer only when he has reasonable grounds to believe that a felony has been committed. A warrantless arrest for a misdemeanor cannot be effected unless the offense is committed in the presence of the officer.

Driving under the influence of intoxicating liquor is a felony only when the offense is committed a third or subsequent time within a five-year period. In all other instances the offense is a misdemeanor. Despite the usual or possible misdemeanor character of the offense, however, this particular offense does not have to be committed 'in the presence' of the officer in order to justify a warrantless arrest. W.Va.Code, 17C-5A-1, as amended, specifically provides that a lawful arrest may be effected and a test for alcohol may be administered incident thereto at the direction of the 'arresting law-enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle ... while under the influence of intoxicating liquor.' State v. Byers, 159 W.Va. at 602-03, 224 S.E.2d at 731-32. [Footnotes omitted by this Court.]

Byers, distinctly envisaged the situation presented by this case where the drunk driver cannot be arrested at the scene of the crime because he has been rushed to the hospital for emergency medical care. We thus hold that since the offense of driving under the influence of alcohol resulting in death under W.Va.Code 17C-5-2 [1981] may be, depending on the circumstances, either a felony or misdemeanor, a lawful, warrantless arrest may be made, upon reasonable suspicion of probable cause, at a hospital by an officer before whom the offense was not committed if the suspect has been taken to the hospital from the scene of the accident for emergency medical care.

The appellant also denies that he consented to the extraction of his blood for the purposes of determining his alcohol content. W.Va.Code 17C-5-4 [1981] (the "implied consent" law) states that:

Any person who drives a motor vehicle upon the public streets or highways of this State shall be deemed to have given his consent by the operation thereof, subject to the provisions of this article, to a chemical test of either his blood, breath or urine for the purpose of determining the alcohol content of his blood whenever he shall be lawfully arrested by a law-enforcement officer ...

This statute allows a law-enforcement officer to designate which one of the three tests is to be administered. However, if the test designated is a blood test "and the person so arrested refuses to submit to such blood test, then the law-enforcement officer making such arrest shall designate in lieu thereof, [that] either a breath or urine test be administered ..." Id. This section goes on to state that no person shall have his license suspended solely because he refuses to submit to a blood test.

The appellant admits that he signed the consent form for blood to be withdrawn, but argues that his request for a lawyer moments before negates any suggestion that his consent was "knowing and voluntary." Nonetheless, this Court agrees with the State that Mr. Franklin, by his words and conduct, voluntarily consented to the administration of venipuncture. Furthermore, the appellant does not state which of his constitutional rights was violated by the blood extraction. He refers, generally, to a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and implies that his Fifth Amendment right to remain silent was somehow infringed upon by the removal of blood from his veins.

The Fifth Amendment privilege against self-incrimination exists to prohibit the state from forcing an individual to testify against himself. Mr. Justice Holmes stated in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910): "[T]he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material ..." 218 U.S. at 253, 31 S.Ct. at 6. And, as this Court held in State v. Blaney, W.Va., 284 S.E.2d 920 (1981), in another appeal from a conviction of driving under the influence of alcohol:

Miranda principles come into play only when there is a privilege against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution. This privilege applies in the case where there is custodial...

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