State v. Bradley

504 So. 2d 1144
CourtLouisiana Court of Appeal
DecidedMarch 16, 1987
Docket86-KA-665
StatusPublished
Cited by6 cases

This text of 504 So. 2d 1144 (State v. Bradley) 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. Bradley, 504 So. 2d 1144 (La. Ct. App. 1987).

Opinion

504 So.2d 1144 (1987)

STATE of Louisiana
v.
Wallace B. BRADLEY, Jr.

No. 86-KA-665.

Court of Appeal of Louisiana, Fifth Circuit.

March 16, 1987.

*1145 Jude G. Gravois, Asst. Dist. Atty., Convent, for respondent-State of Louisiana.

Thomas J. Kliebert, Jr., Indigent Defender, Gramercy, for defendant-relator.

Before BOWES, WICKER and GOTHARD, JJ.

WICKER, Judge.

The defendant, Wallace B. Bradley, was convicted of driving while intoxicated (his first offense) and of improper lane usage. The sentence imposed has not been executed pending his appeal of his conviction. We affirm.

Bradley assigns the following errors:

1. Inadequate evidence to convict him of L.S.A.-R.S. 32:79 (improper lane usage);

2. Lack of probable cause to stop him while he was driving;

3. Lack of probable cause to administer the Photo-Electric Intoximeter (PEI) test following his field sobriety test;

*1146 4. Improper certification of the ampul lot; and

5. Error in convicting him of L.S.A.-R.S. 14:98 (driving while intoxicated) based upon a PEI test result of —.10.

Bradley was out driving at 2:52 A.M. in Vacherie, Louisiana. He was going approximately 20 m.p.h. in a 45 m.p.h. zone when he was noticed by Deputy Jonathan Warner, out on routine patrol. Warner, following Bradley, saw him pull away from an intersection, pick up speed, and swerve over the broken yellow center line three or four times. Warner testified that Bradley's driving seemed normal to him at this point and until the next intersection two-and-one-half to three miles later. Bradley slowed for the red light but didn't stop, since the light turned green. Bradley then began erratic swerving, crossing over the center line by as much as a car's width seven or eight times. He never swerved to the right on the shoulder, however; and he was driving about twenty miles per hour all this time. No other vehicles were on the road in either direction.

Warner pulled Bradley over to the side of the road; and Bradley got out of the car, staggering and swaying and seemingly off balance. Bradley walked towards Warner, and Warner could see by his "take down" light that Bradley's eyes were red and watery. During the fifteen to twenty foot walk towards Warner, Bradley staggered eight or ten times, with each second step and always to his right. (Bradley's attorney raised the possibility at trial that Bradley was walking with one foot on the shoulder and one foot on the road, causing his erratic walk. Warner, however, testified that both Bradley's feet were on the shell shoulder; and this testimony was unrebutted.) Bradley was "obviously intoxicated", and Warner detected a moderate smell of alcohol on his breath and clothes from a distance of two or three feet.

Warner administered a field sobriety test with the following results:

Bradley stated his name and address with no problem. He recited the alphabet but with slurred speech. He was asked to pick up coins from the ground with the opposite hand while standing on one foot. He performed this task successfully on one foot but fumbled and dropped a coin while standing on the other. He walked a ten-foot straight line, stepping off the line three times.
He was asked to touch his nose with the index finger of each hand with his eyes closed. He missed with one hand; he touched with the other, but hesitantly.

Warner testified Bradley would have passed the field sobriety test had he not dropped the coins.

Bradley was neatly dressed and cooperative; but he was talkative, nervous and upset. He said he had had "a couple" of beers. He also said, in the patrol car on the way to the courthouse in Convent, Louisiana (a forty-five minute drive) that "he had made a mistake, ... he had went out and had too many drinks."

At the courthouse, the PEI machine was tested by Deputy Kurt Roussel, who administered the blood alcohol test to Bradley. Bradley walked across the room without assistance and without falling. Roussel got test results that he said, at different times in his testimony, were either .10 or —.10. Both figures appear on the written results. Appendix A. As a result of this reading, Bradley was booked with driving while intoxicated. He was also booked with improper lane usage and driving without a license. (He was found not guilty of this latter charge.)

ASSIGNMENT OF ERROR # 1

Bradley urges that the evidence presented was insufficient to find him guilty of improper lane usage. L.S.A.-R.S. 32:79 reads:

79. Driving on roadway laned for traffic.
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all other consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained *1147 that such movement can be made with safety.[1]

The elements of the statute require that the state prove that Bradley (1) did not stay in his lane as far as practicable; and (2) Bradley moved from his lane without ascertaining that such a movement could be safely done.

Our standard for reviewing a sufficiency of evidence claim is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984).

We find there was ample evidence that Bradley did not stay in his lane, crossing the center line eleven times without any apparent reason. These actions in and of themselves would appear to be inherently unsafe. Bradley, in addition, was intoxicated. (See Assignment of Error # 5, infra.) We believe his drunken condition precludes a determination by Bradley that his erratic weaving was safe. We hold that a rational trier of fact could have found that the elements of L.S.A.-R.S. 32:79 had been proven beyond a reasonable doubt and affirm.

ASSIGNMENT OF ERROR # 2

Bradley claims that his manner of driving, which involved swerving over the center line about eleven times and going twenty m.p.h. less than the speed limit, was not sufficient probable cause for Warner to stop him. He further claims that, because of this lack of probable cause, all evidence against him should be suppressed.

"A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions."

L.S.A.-C.Cr.P. art. 215.1(A). Investigative stops of automobiles may be made where there is reasonable suspicion. U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); U.S. v. Hall, 557 F.2d 1114 (5th Cir.1977).

Louisiana jurisprudence contains several cases which are very close in factual context to the one before us. They hold that driving conduct quite similar to Bradley's constituted probable cause to stop the car. State of Louisiana v. Michiels, 495 So.2d 409 (La.App.

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Bluebook (online)
504 So. 2d 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bradley-lactapp-1987.