State v. Coleman

542 S.E.2d 74, 208 W. Va. 560, 2000 W. Va. LEXIS 175
CourtWest Virginia Supreme Court
DecidedDecember 1, 2000
DocketNo. 27807
StatusPublished
Cited by2 cases

This text of 542 S.E.2d 74 (State v. Coleman) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Coleman, 542 S.E.2d 74, 208 W. Va. 560, 2000 W. Va. LEXIS 175 (W. Va. 2000).

Opinion

PER CURIAM:

I.

The instant case is an appeal by Chad Coleman of his conviction for third-offense driving while intoxicated, a violation of W.Va. Code, 17C-5-2(k) [1996].

The charge against the appellant arose from events that unfortunately are far from unique. The appellant drove his car down an off ramp, crossed the center line, and ran into a car being driven by a woman who was seriously injured in the crash.

There were no skid marks showing any braking or evasive acts by the appellant. The appellant was found by emergency personnel to be incoherent and smelling strongly of alcohol. Taken to the hospital, the appellant was combative and diagnosed as having alcohol intoxication. Hospital authorities performed tests on the appellant’s blood that showed an elevated blood alcohol level, and the results of these tests were admitted into evidence at the appellant’s trial.

Police records showed that the appellant had been convicted of DUI four times previously. (The trial judge in sentencing the appellant strongly criticized authorities in the State of Ohio where these prior convictions occurred, for their slap-on-the-wrist approach to multiple-DUI offenders.)

II.

The appellant asserts that there were a number of errors in his trial. We address two of the asserted errors, finding the others to be without merit.

First, Mr. Coleman argues that the jury was erroneously instructed that evidence that there was ten hundredths of 1% or more, by weight, of alcohol in Mr. Coleman’s blood would be prima facie evidence that Mr. Coleman was “under the influence” of alcohol, or intoxicated.

Such an instruction is directly based on the provisions of W.Va.Code, 17C-5-8 [1994],1 [562]*562which gives pñma facie “under the influence” or “intoxication” weight to such blood test results — if the blood test in question is “performed in accordance with methods and standards approved by the state division of health.” Id.

Mr. Coleman bases his argument of instructional error on the fact that there was no evidence that the blood test results that were testified to at his trial did in fact meet the state-approved methods and standards, as specified in W.Va.Code, 17C-5-8 [1996]. The State concedes that there was no such evidence presented at Mr. Coleman’s trial.

Second, Mr. Coleman argues that his “recidivist” third-offense DUI conviction should be reversed pursuant to the holding of State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999). In Nichols, we held that telling a jury about a person’s previous DUI offenses could be unfairly prejudicial at the trial of a recidivist DUI ease, and we authorized alternative procedures, such as bifurcation and stipulation, to avoid such prejudice.

We can quickly dispose of the appellant’s second issue. The appellant’s ease was tried on November 9, 1999, on a day when the decision in State v. Nichols was pending in the breast of this Court. The opinion in Nichols was filed on December 3, 1999 — 24 days after the appellant’s trial date. The appellant did not make any claim for bifurcation or stipulation at his trial, nor did he take any other action to preserve any alleged error in this regard. Under these facts, we find no grounds under Nichols to reverse the appellant’s conviction.

The appellant’s first issue, regarding the prima facie intoxication instruction, is more substantial.

The State agrees that a literal reading of W.Va.Code, 17C-5-8 [1996] does not allow the results of blood tests (including those that are performed by non-law enforcement personnel) to have prima facie weight unless the tests are conducted in the statutorily-prescribed fashion.

The State argues nevertheless that this Court should not read the requirements of W.Va.Code, 17C-5-8 [1996] literally — because, contends the State, a literal reading of the statute would be “irrational.”

For constitutional and similar weighty reasons, this Court must on occasion not uphold the clearly expressed statutory intent of the [563]*563Legislature. But this is not such a case. The requirements of W.Va.Code, 17C-5-8 [1996], read literally, may or may not be unwise — but they are not so absurd, inherently contradictory, or irrational as to require this Court to ignore or deviate from the clear language of the statute. It is certainly “rational” to require that certain procedures must be required before a chemical test may be afforded prima facie legal weight.

We must therefore agree with the appellant’s contention that the judge’s instruction to the jury on the prima facie weight of the blood test results evidence did not properly belong in the trial court’s charge — because the blood test results in question did not meet the statutory criteria for being given such weight.

The question that follows from this conclusion is: does the court’s inclusion of this instructional language in the jury charge require reversal of the appellant’s conviction? In this regard, we must ask whether this error, as asserted on appeal, was fully and properly preserved for appellate review.

Counsel for Mr. Coleman does not direct us to any place in the record where an objection was made to the trial judge about inclusion of the prima facie instructional language in the jury charge, prior to the charge being given — although such an objection was made post-verdict, in a motion for a new trial.

During the trial, when the appellant’s counsel objected to the prosecution’s introduction of hospital blood test results as evidence, the trial judge (as part of a colloquy with counsel) asked the prosecutor if the prosecutor was going to offer the prima facie instruction as part of the jury charge. The prosecutor replied that he was, and that he expected that such a proffered instruction would draw an objection. Defense counsel did not speak to the prima facie instruction question, and the judge did not say that he was or was not going to give such an instruction.

The trial judge then admitted the hospital blood test results, but he specifically stated that the results were being admitted under State ex- rel. Allen v. Bedell, 193 W.Va. 32, 454 S.E.2d 77 (1995).

In Bedell, this Court allowed the results of blood tests that were not administered by or at the direction of law enforcement to be introduced into evidence, stating:

Medical records containing the results of blood alcohol tests ordered by medical personnel for diagnostic purposes are subject to subpoena and shall not be deemed inadmissible by virtue of the provisions of West Virginia Code § 57-5-4d (Supp.1994).

Syllabus Point 2, State ex rel. Allen v. Bedell, 193 W.Va. 32, 454 S.E.2d 77 (1995). We did not address in Bedell the issue of whether such test results could be given prima facie weight if there was no evidence that the tests were performed according to state-approved standards.

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Bluebook (online)
542 S.E.2d 74, 208 W. Va. 560, 2000 W. Va. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coleman-wva-2000.