Bailey v. State

1981 OK CR 97, 633 P.2d 1249, 1981 Okla. Crim. App. LEXIS 247

• Court: Court of Criminal Appeals of Oklahoma
• Decided: August 18, 1981
• Docket: F-79-647
• Status: Published

Opinions

OPINION

BUSSEY, Judge:

James Jeremiah Bailey, appellant, appeals to this Court from the judgment and sentence rendered against him in Pottawatomie County District Court, Case No. CRF-78-352. He was convicted in that case of Driving While Under the Influence of Intoxicating Liquor, second or subsequent offense, in violation of Laws 1978, ch. 108, § 1, now 47 O.S.Supp.1980, § 11-902, and was sentenced to five (5) years’ imprisonment.

The appellant contends as his first assignment of error that the trial court erred in refusing to submit a jury instruction on Operating a Motor Vehicle While Ability is Impaired, Laws 1978, ch. 109, § 1, now 47 O.S.Supp.1980, § 761, an alleged lesser included offense of Driving While Under the Influence, 47 O.S.Supp.1980, § 11-902, under Jackson v. State, 554 P.2d 39 (Okl.Cr.1976). See also Perry v. State, 561 P.2d 112 (Okl.Cr.1977); Wren v. State, 556 P.2d 1308 (Okl.Cr.1976); and King v. State, 556 P.2d 1306 (Okl.Cr.1976). In Jackson, an opinion concurred in by this author, this Court emphasized that part of Laws 1972, ch. 192, § 1, now 47 O.S.Supp.1980, § 756, which provides that:

... (b) evidence that there was more than five-hundredths (6/ioo) of one percent (1%) by weight of alcohol in the person’s blood is relevant evidence of operating a motor vehicle while his ability to operate such a motor vehicle is impaired by the consumption of alcohol or intoxicating liquor; ... (c) evidence that there was ten-hundredths (10/ioo) of one percent (1%) or more by weight of alcohol in his blood shall be admitted as prima facie evidence that the person was under the influence of alcohol or intoxicating liquor; ....

It was concluded that the State must of necessity establish operating while impaired before it can prove driving under the influence.

However, an important caveat in this statute may be noted:

. . . [N]o person shall be convicted of the offense of operating a motor vehicle while his ability to operate such vehicle is impaired by consumption of alcohol or intoxicating liquor solely because there was more than five-hundredths (5/ioo) of one percent (1%) by weight of alcohol in the person’s blood in the absence of additional evidence that such person’s driving was affected by said consumption of alcohol to the extent that the public health and safety was threatened or that said person had violated a state statute or local ordinance in the operation of a motor vehicle.

See 47 O.S.Supp.1980, § 756(b). No such requirement is stated for Driving Under the Influence. See 47 O.S.Supp.1980, § 756(c).

In Armstrong v. State, 300 P.2d 766 (Okl.Cr.1956), this Court noted that less than .05% blood alcohol content indicates that one is not under the influence, while .15% or more supports the opposite conclusion; a blood alcohol level of between .05% and .15% was said to constitute evidence to be received with other testimony bearing on the issue. The Legislature later adopted a blood alcohol test results law, substantially identical to Armstrong; middle range (.05 to .15%) test results were declared to be relevant evidence of Driving While Under the Influence, though not entitled to prima facie effect. See Laws 1967, ch. 86, § 6. However, in 1972, the statute was amended so that results in the middle range were relevant evidence of the newly created offense of Driving While Impaired, which must be coupled with evidence of bad effects on public safety in order to support a conviction. See 47 O.S.Supp.1980, § 756, and 47 O.S.Supp.1980, § 761.

When a driver has a relatively high level of alcohol in the bloodstream (.10% or more) the crime of Driving While Under the Influence is prima facie complete. A relatively lower level of blood alcohol content (.05% or more) may constitute evidence of a second offense, Operating While Impaired, when coupled with additional evidence that the driver’s ability to safely operate a vehicle was actually, demonstrably, adversely affected.

It thus appears that the commission of Operating While Impaired, 47 O.S.Supp. 1980, § 761, is not necessarily included in the commission of Driving Under the Influence, 47 O.S.Supp.1980, § ll-902(a), the former requiring proof of an element not required by the latter. See 22 O.S.1971, § 916. Jackson v. State, supra, is overruled to the extent inconsistent herewith.

The appellant contends as his second assignment of error that the trial court erred in failing to give the instruction on the definition of “under the influence” approved by this Court in Luellen v. State, 64 Okl.Cr. 382, 81 P.2d 323 (1938).¹ See Stanfield v. State, 576 P.2d 772 (Okl.Cr.1978); Evans v. State, 312 P.2d 908 (Okl.Cr.1957); King v. State, 305 P.2d 589 (Okl.Cr.1956); and Harrison v. State, 95 Okl.Cr. 123, 240 P.2d 459 (1952). However, this contention is raised for the first time on appeal. No cases are cited wherein a conviction was reversed for failure of the court to give such an instruction on its own motion. See Powell v. State, 88 Okl.Cr. 404, 203 P.2d 892 (1949) and People v. Ekstromer, 71 Cal.App. 239, 235 P. 69 (1925), relied on by this Court in Luellen. This assignment of error was not properly preserved for appellate review. There appearing no error in the record which would justify modification or reversal, the judgment and sentence appealed from is accordingly Affirmed.

BRETT, P. J., dissents. CORNISH, J., concurs.

1 . The court stated in the third Syllabus:

A fair and reasonable definition of the term ‘under the influence of intoxicating liquor’ as used in the above section of the statute is That if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner of an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is ‘under the influence of intoxicating liquor’ within the meaning of the statute.