State v. Hood, 13056
| Decision Date | 02 November 1971 |
| Docket Number | No. 13056,13056 |
| Citation | 184 S.E.2d 334,155 W.Va. 337 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Lowell F. HOOD. |
Syllabus by the Court
Before the result of a Breathalyzer test for blood alcohol administered pursuant to Code, 17C--5A--1 et seq., as amended, is admissible into evidence in a trial for the offense of operating a motor vehicle while under the influence of intoxicating liquor, a proper foundation must be laid for the admission of such evidence.
Goodwin & Goodwin, Joseph R. Goodwin, Thomas R. Goodwin, Ripley, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal by Lowell F. Hood, hereinafter referred to as defendant, from a final order of the Circuit Court of Jackson County, dated September 24, 1970, sentencing defendant to three days in the Jackson County jail, fining him $100 and revoking his driver's license for a period of six months upon his having been convicted of driving a motor vehicle while under the influence of intoxicating liquor.
During the early morning hours of Sunday, June 28, 1970, a member of the Ripley Police Department, Officer Lonnie Creed Hill, observed an automobile swerving and crossing over the center line of Main Street in Ripley. Thereafter, he sounded his siren and turned on his red light, whereupon the automobile pulled off of the right hand side of the road. Officer Hill asked the defendant, who was driving the automobile, to show him his driver's license and registration card. Officer Hill then asked defendant to get out of the car. Defendant did so, taking a few steps toward the rear of the car and leaning up against it. The officer testified that the defendant staggered and that he could smell alcohol on the defendant's breath. The officer then placed his hand on the defendant's shoulder and informed him that he was under arrest, whereupon the defendant grabbed the officer around the waist. The officer then hit the defendant twice, knocking him unconscious. Two officers, who arrived at the scene ten to fifteen minutes later, took the defendant to the courthouse, and there someone called Trooper D. J. Martin of the West Virginia Department of Public Safety to come and administer a Breathalyzer test. Officer Hill, the arresting officer, did not accompany the defendant to the courthouse, nor was he present during the test, he having gone from the scene of the arrest to the hospital to have his injured hand attended.
One of the officers who had taken defendant to the courthouse testified that defendant had vomited in the police cruiser just prior to coming into the courthouse. An employee of the sheriff's department testified that she observed that the defendant had vomit on his clothes and that his mouth was bloody. Trooper Martin testified that he arrived at the courthouse at about 4:00 a.m. and administered the Breathalyzer test, the result of which was 0.13 per cent of alcohol in defendant's blood.
Two witnesses for the defense testified that they had seen the defendant during the preceding evening, and it was their opinion that he was sober. The defendant took the stand and testified that he had had five or six beers early in the evening and that the blows he received from Officer Hill rendered him unconscious, lacerated his mouth and knocked out several of his teeth. He also testified that he remembered nothing from the time he was knocked unconscious until he woke up in jail.
This Court granted defendant's writ of error and supersedeas on February 1, 1971, and on September 21, 1971, the case was submitted for decision upon briefs and oral arguments of counsel for both sides.
The defendant assigns as error the trial court's admitting the result of the Breathalyzer test in that there was no showing that the test was conducted in accordance with methods and standards prescribed by the West Virginia Department of Health and since no showing was made that the test was conducted at the direction of the arresting law enforcement officer; the court's giving State's Instruction No. 10 relating to the presumptions arising from the result of the Breathalyzer test; the court's refusing to give defendant's Instructions 1, 5 and 15 all dealing with the Breathalyzer test; and the court's refusing to grant defendant's various motions during and after the trial.
The pivotal issue in this case is whether the admission into evidence of the result of the Breathalyzer test given to the defendant was proper.
Code, Chapter 17C, Article 5A, as amended, is entitled 'Implied Consent for Chemical Test for Intoxication.' The pertinent provisions of this Article as applied to the case before us are Sections 1 and 5. Section 1, in pertinent part, reads as follows:
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 alcoholic content of his blood whenever he shall be lawfully arrested by a law-enforcement officer as hereinafter defined for the offense of driving a motor vehicle upon the public streets or highways of this State while under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and shall be administered 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. * * * The person arrested shall be told that his refusal to submit to the test finally designated as provided in this section, will result in the suspension of his operator's or chauffeur's license, or junior or probationary operator's license, or nonresident privilege to drive for a period of six months.
For the purposes of this article the term 'law-enforcement officer' shall mean and be limited to (1) any member of the department of public safety of this State, (2) any sheriff and any deputy sheriff of any county, and (3) any member of a municipal police department under civil service in accordance with the provisions of article five-A, chapter eight of this Code.
It should be noted that the requirements are that the implied consent applies (1) when incident to a lawful arrest; (2) by a law enforcement officer (which definition is limited to (a) a member of the department of public safety, (b) any sheriff or deputy sheriff of any county,...
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