State v. Allison

554 So. 2d 262, 1989 La. App. LEXIS 2519, 1989 WL 151541
CourtLouisiana Court of Appeal
DecidedDecember 13, 1989
DocketNo. CR89-495
StatusPublished
Cited by3 cases

This text of 554 So. 2d 262 (State v. Allison) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Allison, 554 So. 2d 262, 1989 La. App. LEXIS 2519, 1989 WL 151541 (La. Ct. App. 1989).

Opinion

DOUCET, Judge.

Defendant, Anthony J. Allison, appeals from a conviction of Driving While Intoxicated, Second Offense, six counts of Vehicular Negligent Injury, and a sentence of six months for each offense. These convictions arise out of a two-vehicular accident which occurred in Beauregard Parish on September 3, 1988, at approximately 9:30 p.m.

On that date, Allison met Mitchell Lee Davis at 8 or 9 a.m. in front of Davis’ shop in Merryville. The two men went to the store and washateria. According to Davis, they began drinking beer at about this time. Allison was driving his 1966 Ford Pickup Truck. At about 11 a.m., they drove to the home of Floyd Bullitt, where Allison showered. The three men talked a few minutes, then walked next door to the home of Bullitt’s sister, Marie Vercher. They stayed there drinking beer and mixed drinks until shortly after 9 p.m. Davis’ testimony indicates that Allison' drank steadily through the day.

Shortly after 9 p.m., Allison and Davis left in Allison’s truck to go to DeQuincy, [263]*263Louisiana to see friends. According to Davis, Allison was driving the truck east on La. Hwy. 110. Davis’ testimony indicates that between 5 and 30 minutes after leaving the Yercher residence, as they neared the Rice Land Lumber Co., Allison began to swerve back and forth, nearly hitting a big truck. Allison again swerved into the oncoming lane of traffic and was hit by a 1983 GMC Suburban driven by John Robin Carr. Mr. Carr, his wife, two children, and his mother-in-law, were badly hurt. Mitchell Davis was also injured. The Suburban was heavily damaged. Allison’s truck broke into pieces.

State Trooper Bruce R. Havens investigated the accident. Upon arriving on the scene, he saw the cab of the pickup in the center of the highway. The motor was in the ditch. The chassis was 40 feet away on the north side of the highway. Tools, clothes, and beer cans were scattered around the area.

By the time Officer Havens arrived on the scene of the accident, Allison and the other victims had been transported to Beauregard Memorial Hospital. Officer Havens went to the hospital and saw Allison there. Allison was on a stretcher. Nurses were attending to his injuries. Upon approaching Allison, Officer Havens smelled alcohol. Allison’s eyes were bloodshot and his speech was slurred. Officer Havens testified that Allison said he hated to go before the Judge on another DWI. Officer Havens further testified that Allison admitted that he was driving in his truck at the time of the accident. Officer Havens advised Allison of his Miranda rights. Officer Havens’ testimony indicates that Allison seemed to be alert and to understand what was being said to him. Nurse Niema Waltzer verified this and stated that defendant’s breath smelled of alcohol.

At about 10:45 p.m., Officer Havens obtained Allison’s consent to a blood alcohol test. He had with him a sealed blood test BD#4990 issued by the Department of Public Safety. At 11 p.m., Nurse Waltzer drew blood from Allison using the kit given her by Officer Havens. She gave the ampule of blood back to Officer Havens. Officer Havens sealed the blood kit. Nurse Waltzer initialed the kit which was then dated. Officer Havens took the kit to Troop D where it was turned over to Trooper Ronald Rhodes who took it to Deputy Ronald Breaux at the Calcasieu Parish Crime Lab. The blood sample was analyzed by Patrick Ieyoub, the director and forensic analyst for the Calcasieu Parish Crime Lab. He found a blood alcohol level of 0.160. La. R.S. 32:662 states that a person shall be presumed to have been under the influence of alcohol where his blood alcohol level is 0.10 percent or more by weight.

As a consequence of the accident and blood alcohol reading, the defendant was charged with six counts of Vehicular Negligent Injury in violation of La. R.S. 14:39.1 and one count of Driving While Intoxicated, Third Offense, in violation of La. R.S. 14:98. The defendant pleaded not guilty to all charges. Upon defendant’s motion all charges were consolidated and a jury trial was granted. Prior to trial, the defendant filed a motion to suppress evidence regarding statements made by the defendant shortly after the accident, and the results of the blood alcohol test. This motion was denied.

On January 16, 17, and 18, the defendant was tried by a six person jury and found guilty of all six counts of Vehicular Negligent Injury and of the lesser offense of Driving While Intoxicated, Second Offense.

On January 23, 1989, the defendant filed a Motion for Post-Verdict Judgment of Acquittal which was denied.

On March 10, 1989, the defendant was sentenced to serve the maximum of six months in the Beauregard Parish jail on each count with the sentences to run consecutively. Defendant appeals alleging six assignments of error as follows:

1.
The trial court erred in denying defendant’s motion to suppress the results of the blood alcohol test conducted on the defendant, in that at the hearing on the motion to suppress the State failed to prove its strict compliance with all applicable rules and regulations regarding the administration of blood alcohol tests.
[264]*2642.
The trial court erred in denying defendant’s motion to suppress the results of the blood alcohol test conducted on the defendant, in that at the hearing on the motion to suppress the State failed to prove that it had promulgated detailed procedures sufficient to insure the integrity and reliability of the chemical blood alcohol tests.
3.
The trial court erred in denying defendant’s motion to suppress statements made by the defendant following the alleged offense, in that his statements were made at a time when he was physically and mentally incapable of making a knowing and intelligent waiver of his constitutional rights and/or without first being advised of his constitutional rights as required by law.
4.
The trial court erred during the trial in denying defendant’s objection to the introduction of the blood alcohol test results on the grounds that such evidence was irrelevant.
5.
The trial court erred in denying defendant’s motion for post-verdict judgment of acquittal in that there was insufficient evidence introduced at trial to prove beyond a reasonable doubt either the offense of Driving While Intoxicated or the six counts of Vehicular Negligent Injury.
6.
The trial court erred in imposing an excessive sentence which amounts to cruel and unusual punishment, and which is not in compliance with the statutory sentencing guidelines.

ASSIGNMENTS OF ERROR NOS. 1 & 2

By his first two assignments of error, the defendant argues that the trial court erred in denying his motion to suppress the results of the blood alcohol test. Relying on State v. Rowell, 517 So.2d 799 (La.1988) the defendant first argues that these results were tainted because the State failed to prove that the regulations governing blood tests were sufficient to insure their integrity and reliability.

The Louisiana Supreme Court in State v. Rowell

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Related

State v. Ruiz
630 So. 2d 897 (Louisiana Court of Appeal, 1993)
State v. Benoit
570 So. 2d 490 (Louisiana Court of Appeal, 1990)
State v. Allison
560 So. 2d 21 (Supreme Court of Louisiana, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
554 So. 2d 262, 1989 La. App. LEXIS 2519, 1989 WL 151541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allison-lactapp-1989.