State v. Fuchs

• Decision Date: 28 June 1974
• Docket Number: No. 472,472
• Citation: 219 N.W.2d 842
• Parties: The STATE of North Dakota, Plaintiff/Appellee, v. John FUCHS, Defendant/Appellant. Crim.
• Court: North Dakota Supreme Court

Page 842

219 N.W.2d 842

The STATE of North Dakota, Plaintiff/Appellee, v. John FUCHS, Defendant/Appellant.

Crim. No. 472.

Supreme Court of North Dakota.

June 28, 1974.

Syllabus by the Court

1. In a prosecution for operating a motor vehicle upon a public highway, while under the influence of intoxicating liquor, the operation of the motor vehicle is an element of the offense and may be established by circumstantial evidence.

2. Circumstantial evidence that a motorist was found alone and asleep in the driver's seat of a motor vehicle parked on the side of the road, with the engine running and the headlights and brake lights on, is sufficient for a jury to infer beyond a reasonable doubt that the motorist drove the motor vehicle to the place where it was found.

3. The shoulder of a road is considered to be a part of the public highway.

4. At the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.

5. Where evidence is sought to be admitted with respect to the results of a breathalyzer test for blood alcohol content, the evidence that the Breathalyzer machine used, the Breathalyzer Operational Check List used to perform the test, and the known chemical solution have been approved by the state toxicologist is foundational, and the hearsay testimony of a police officer who administered the breathalyzer test is not admissible over objection to establish that foundation.

6. Where evidence of a blood test has been properly admitted and it establishes a statutory presumption of being under the influence of intoxicating liquor, then the error of improperly admitting breathalyzer evidence without proper foundation is harmless error, because it would be merely cumulative evidence and because such an error is not so prejudicial as to deprive a defendant of a fair trial.

7. Having reviewed the evidence in this case as summarized in this opinion, it is the conclusion of this court that the defendant received a fair trial and that such evidence supports the verdict.

Christensen, Christensen & Baer, Bismarck, for defendant/appellant.

Lester J. Schirado, State's Atty., Mandan, for plaintiff/appellee.

KNUDSON, Judge.

This is an appeal from a verdict of a jury finding the defendant guilty of driving a vehicle upon a highway while under the influence of intoxicating liquor, in violation of § 39--08--01, North Dakota Century Code. The defendant (hereinafter Fuchs) appealed from the jury verdict.

Fuchs raised three issues:

I. That the verdict is not supported by the evidence, specifically that the State did not prove that the defendant was (a) driving his vehicle, (b) while under the influence of intoxicating liquor, and (c) upon a public highway.

II. That the court erred in permitting testimony concerning the breathalyzer test without any foundation as to the machine used being a Breathalyzer.

III. That the court erred in admitting into evidence the Breathalyzer Operational Check List (exhibit 2), over objection on the ground that there was no showing that the Check List was prepared for use by the State Toxicologist, as required by statute.

A summary of the circumstances at the time of the arrest may be derived from the testimony of the deputy sheriff, substantially as follows:

On July 11, 1973, at approximately 1:20 a.m., the deputy sheriff observed Fuchs' motor vehicle parked on the north side of Highway 10 east of Mandan, in Morton County, facing west, with its motor running, and its head lights and brake lights on. He parked his patrol car behind Fuchs' vehicle and walked to Fuchs' vehicle. He found Fuchs sitting in the driver's seat of the vehicle, with his head laying back, with his mouth open and his arms folded across his chest. As the door was locked, the deputy knocked on the window several times over a period of about five minutes to arouse Fuchs, who appeared to be sound asleep. When Fuchs awakened he rolled down his window and, to the deputy's question as to what the problem was, replied that there was no problem, 'I just had too much to drink and pulled over and slept for a while.' The deputy then asked Fuchs for his driver's license and to get out of the vehicle. As Fuchs opened the door the vehicle moved backward about two inches and the deputy reached in and pulled the shift lever into the 'park' position from its prior position of between 'park' and 'reverse.' As Fuchs stepped from the vehicle he fell against the deputy, who had to stand him against the vehicle while he looked at Fuchs' driver's license. The deputy noticed Fuchs was very unsteady and wobbly and he could smell a strong odor of alcohol from him. The deputy then placed Fuchs under arrest for driving while under the influence of intoxicating liquor, read him his constitutional rights upon arrest, and took him to the Mandan police station for a breathalyzer test of the amount of alcohol in his blood.

The breathalyzer test showed there was 0.22% Alcohol in Fuchs' blood. At Fuchs' request that he be given a blood test, a blood sample was taken at the Mandan Hospital and was sent to the State Toxicologist in Fargo. At trial a chemist from the office of the State Toxicologist, who had tested Fuchs' blood, testified that Fuchs' blood contained 0.23% By weight of alcohol.

The defendant contends that an essential element of the offense is that the vehicle must be in motion, and that since in this case the vehicle was parked the State has failed to prove an essential element of the offense. But it has been held that the driving of a vehicle while under the influence may be established by circumstantial evidence, and that a person found in a similar situation as Fuchs has been found guilty of driving a vehicle while intoxicated, when the vehicle was not moving at the time of the arrest.

In State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970), the Supreme Court of Nebraska held, at syllabus 2:

'In a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the operation of the motor vehicle is an element of the offense and may be established by circumstantial evidence.'

The circumstances in the Eckert case were, as quoted from page 267 of 181 N.W.2d:

'. . . that defendant's motor vehicle was found parked in the right-hand lane of a public highway approximately 8 miles north of Grant, Nebraska. Defendant was slumped over the steering wheel in a drunken stupor. He was alone in the motor vehicle and no other person was in proximity to the motor vehicle. No liquor, nor liquor containers, were found in or about the motor vehicle. The motor vehicle was not moving and the engine was not running. Defendant stated that he had no recollection of what happened from the time he left Madrid until he was aroused by law enforcement officers at the time of his arrest. These facts are not disputed. The evidence is sufficient, although circumstantial, to sustain the finding that defendant operated his motor vehicle on a public highway while under the influence of intoxicating liquor.'

In State of Oregon v. Brown, 485 P.2d 444 (Or.App.1971), where the defendant's automobile was found parked 'alongside the main travel portion' of a highway, the Court said, at page 446:

'As we understand defendant's third assignment of error, he is contending that proof of the element of 'driving on a public highway' in the offense of driving while under the influence of intoxicating liquor cannot be inferred from 'merely finding the defendant in a car that is parked at night with its lights and engine off.' He is also contending that commission of the crime charged was not established to a moral certainty and to the exclusion of every other reasonable hypothesis before defendant's admissions were received in evidence. These contentions are without merit. The officers found defendant slumped behind the wheel of a car parked alongside the highway. In addition the record shows that the keys were in the ignition and there was no other person in the vicinity. The officers testified that the hood of the car was still warm. This was sufficient evidence, apart from defendant's admissions, from which a court or jury could infer beyond a reasonable doubt that the defendant had driven the automobile on a public highway to the place where it was parked shortly before the officers arrived on the scene.'

For a similar holding, see State v. Carter, 15 N.C.App. 391, 190 S.E.2d 241 (1972),...