Brown v. State

1983 OK CR 170, 673 P.2d 515, 1983 Okla. Crim. App. LEXIS 348

Opinion

MEMORANDUM OPINION

BUSSEY, Presiding Judge:

Michael Dean Brown, the appellant, was convicted of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, in the District Court of Garvin County, Case No. CRM-80-706, was sentenced to ten (10) days in the County Jail, assessed a $500 fine, and he appeals.

For the purposes of this opinion, we deem it unnecessary to state the facts of the case.

The appellant asserts as his sole assignment of error that he was entitled to an instruction on driving while impaired.

In Bailey v. State, 633 P.2d 1252 (Okl.Cr.1981), this Court held that driving while impaired is not necessarily a lesser included offense of driving while intoxicated, as only the former offense requires proof that the use of alcohol affected an accused’s driving. In the instant case, no evidence was presented to justify the giving of an instruction on driving while impaired.

Accordingly, the judgment and sentence appealed from is AFFIRMED.

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