State v. Haws
| Decision Date | 15 February 1994 |
| Docket Number | No. S-92-628,S-92-628 |
| Citation | 869 P.2d 849 |
| Parties | The STATE of Oklahoma, Appellant, v. Wayne L. HAWS, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Wayne L. Haws, Appellee, was charged by Information in Oklahoma County Case No. CM-91-2714, for the crime of Actual Physical Control of a Motor Vehicle, While Under the Influence of Alcohol, 47 O.S. § 11-902(A)2. The State of Oklahoma has appealed the decision of the Oklahoma County District Court, which dismissed Case No. CM-92-0848, holding that, because it was reluctant to be put in the position of sitting in appellate review of a fellow judge's order, it was sustaining Judge Sidney Gorelick's order of April 13, 1992, dismissing Case No. CM-91-2714 (refiled as CM-92-0848). This case is Remanded With Instructions to Dismiss.
J. Hugh Herndon (at trial and on appeal) Midwest City, for appellee.
Kenny Linn, Asst. Dist. Atty. (at trial), Oklahoma City, for State.
Robert H. Macy, Dist. Atty., Kenneth T. Linn, Asst. Dist. Atty. (on appeal), Oklahoma City, for appellant.
SUMMARY OPINION
The State of Oklahoma has appealed the decision of the Oklahoma County District Court, which dismissed Case No. CM-92-0848, holding that, because it was reluctant to be put in the position of sitting in appellate review of a fellow judge's order, it was sustaining Judge Sidney Gorelick's order of April 13, 1992, dismissing Case No. CM-91-2714 (refiled as CM-92-0848). Judge Gorelick's order held:
On July 20, 1991, Officers Brent Shetley and Rod Strecker were dispatched to a residence in Del City to check out the welfare of a man passed out in a pick-up truck, parked in the driveway. Upon their arrival, they observed Wayne L. Haws, Appellee, asleep in his automobile with the doors opened. Officer Shetley inquired of the owner of the residence (who later turned out to be a long time friend of Appellee) whether she or her son, who called the police, recognized the truck. Both indicated they did not. Both officers approached the vehicle and awakened Appellee. They immediately noticed a strong odor of alcoholic beverage on his breath and person, and further observed that Appellee was unable to remain on his feet without assistance. Appellee was placed under arrest for being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol. After being advised of the implied consent warning, Appellee agreed to take the test. Observing the 15-minute deprivation period, the officers performed the test which resulted in a 0.11 breath alcohol content.
The Information was filed in the Municipal Court of the City of Del City under Case No. 024543 and came on for initial hearing on July 29, 1991, when it was set on the Disposition Docket of October 7, 1991. On November 19, 1991, the matter came on for trial, when Appellee's Motion to Dismiss and Motion To Quash were argued. The attorney representing Del City conceded to Appellee's facts and law. Municipal Judge George Suttle sustained the motions and dismissed the case.
Thereafter, the arresting officer complained to the Oklahoma County District Attorney. On November 27, 1991, an Information was filed in the District Court of Oklahoma County, Case No. CM-91-2714, alleging the same crime. On April 1, 1992, pursuant to Appellee's Motion To Dismiss and Motion To Quash, the Information was amended to correct an error. On April 13, 1992, the matter came on for hearing before Special Judge Sidney Gorelick, who made the rulings as set out above. The case was dismissed and Appellee's bond was exonerated at the cost of the State.
On April 14, 1992, the State filed a Motion to Dismiss and To Recall Warrant, pursuant to 22 O.S.1991, § 815, to be refiled according to State v. Robinson, 544 P.2d 545 (Okl.Cr.1975). An order dismissing the case and recalling the warrant was issued by Special Judge Susan Bragg. On April 16, 1992, the State refiled the case under Case No. CM-92-0848. On June 3, 1992, Appellee filed his Motion To Dismiss and trial was set for June 15, 1992, before Special Judge Karl Gray. Prior to the seating of the jury, argument was had on Appellee's Motions, which were sustained. However, Judge Gr...
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