State v. Conrad

421 S.E.2d 41, 187 W. Va. 658, 1992 W. Va. LEXIS 146
CourtWest Virginia Supreme Court
DecidedJuly 14, 1992
DocketNo. 20524
StatusPublished
Cited by5 cases

This text of 421 S.E.2d 41 (State v. Conrad) 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. Conrad, 421 S.E.2d 41, 187 W. Va. 658, 1992 W. Va. LEXIS 146 (W. Va. 1992).

Opinion

PER CURIAM:

The defendant, Timothy Conrad, was convicted of “second offense DUI” (driving while under the influence of alcohol) by jury verdict in the Circuit Court of Putnam County. Upon appeal, the defendant submits that the trial court committed reversible error when it (1) denied the defendant’s motion to disallow the use of certain breathalyzer test results at trial, and (2) permitted the use of the defendant’s first DUI conviction (dated September 23, 1983) to enhance the defendant’s sentence in this case. Upon a careful review of the record and the applicable law, we find that the trial court did not err and we therefore affirm the jury verdict.

On August 14, 1983, the defendant was arrested for first offense DUI. After proceeding to trial in the Putnam County Magistrate Court, the defendant was convicted of first offense DUI pursuant to W.Va. Code, 17C-5-2 [1983].1

On February 2, 1989, the defendant was driving an AMC Eagle in Teays Valley, Putnam County, between 1:30 a.m. and 2:00 a.m. His vehicle was observed by Deputy Sheriffs Roger Blankenship and Charles Sisk of the Putnam County Sheriff’s Department. The deputies observed the defendant’s vehicle exit Interstate 64 onto Route 34 heading south. When the defendant’s vehicle exited the interstate, it pulled out in front of another vehicle. The deputies observed the defendant’s car moving at a slow rate of speed and weaving on the road. The deputies, who were parked in a service station while observing the defendant’s vehicle, pulled out behind the defendant as he passed, and followed the defendant’s vehicle a short distance. When the defendant failed to use his turn signal when he made a left turn, the deputies turned on the blue lights of their patrol car and pulled in behind the defendant’s vehicle.

Upon approaching the driver’s side of the defendant’s vehicle, Deputy Blankenship recognized the driver as the defendant.2 There was also a passenger in the defendant’s vehicle, Mr. Mancil Linkous. Deputy Blankenship testified that a strong odor of alcohol emanated from the defendant’s vehicle, and that the defendant’s coordination appeared “messed up” and his speech slurred. After requesting the defendant’s driver’s license and vehicle registration card, Deputy Blankenship asked the defendant to step out of the vehicle and take a “field sobriety test” 3 to determine whether [660]*660the defendant was intoxicated. The defendant failed the “field sobriety test,” and was thereafter arrested for DUI by the deputies. The deputies also arrested Mr. Linkous for public intoxication.

The deputies then transported the defendant and Mr. Linkous to jail. The defendant was read an “implied consent law” form by Deputy Sisk at the jail, advising the defendant of his right to take a breathalyzer test. The defendant agreed to take the breathalyzer test.

Deputy Sisk testified that he was certified by the West Virginia Department of Health to operate the “Intoxilyzer 5000,” the machine by which the breathalyzer test was given. Deputy Sisk completed a nine-stage preparation and operation scheme to ready the “Intoxilyzer 5000” for use by the defendant. He marked an “operational check list” as he completed each of the nine stages.4 Deputy Sisk testified that he followed the “operational check list” and, after noting that the breathalyzer machine was “warmed up,” he provided the defendant a sterile mouthpiece for which to blow into the machine. When the breathalyzer machine read “please blow,” he asked the defendant to blow into the machine.

Deputy Sisk testified that it took the defendant two or three tries to register on the machine because, “he was not actually blowing.” The machine then printed out a ticket with the results of the test. The ticket gave a blood/alcohol level reading of 0.16 per cent. The ticket incorrectly noted a date of January 28, 1988 and a time of “03:41.” The ticket further noted that the “subject test,” for which the 0.16 per cent blood/alcohol level reading was given, was a “deficient sample — value printed was highest obtained.” Deputy Sisk added in long-hand form at the bottom of the ticket: “Intoxilyzer time is off 1 Hr. 23 minutes. Date is also off.”

Deputy Sisk then testified that the fact that the Intoxilyzer 5000 gave incorrect time and date readings on the ticket did not have any relationship to the blood/alcohol instrument readings. Furthermore, Deputy Sisk testified that he had completed a “calibration check” which confirmed that the blood/alcohol level reading instruments were in proper working order. Deputy Sisk made an analogy between the time and date readings on a home video player and those on the Intoxilyzer 5000. He testified:

Well, if the power would go out or if there is a power surge then the clock without a battery backup, which this does not have, would stop working. It’s kind of like your VCR at home. If you come in and there has been a storm or [661]*661your power has went off, your VCR the clock on it may be blinking. Okay, without a battery backup in this, your clock can’t work, but your VCR still has the function in it to play a VCR tape. You can still record movies on it, but the time just won’t show on it. It’s the same with this Breathalyzer.”

Deputy Sisk explained that no member of his department has access to the internal workings of the Intoxilyzer 5000, so they could not change the incorrect date and time readings on the machine. He did not know what had caused the incorrect time and date readings on the breathalyzer machine at the time of the defendant’s test.

The defendant objected to presentation of the breathalyzer test results to the jury on the basis that the ticket printed by the Intoxilyzer 5000 contained the notation “deficient sample — value printed highest obtained” in reference to the test results. Deputy Sisk testified that a “deficient sample” reading by the machine did not mean that the sample was inaccurate, only that the canister was not filled with the defendant’s breath when a reading was given by the machine. He testified that the reading was accurate for the sample blown by the defendant, and that the blood/alcohol level reading would have been higher had the defendant filled the canister with his breath.

The defendant presented the testimony of Jeffrey Russell, a bystander to the arrest. He testified that he observed the arrest of the defendant from his vehicle parked nearby. He alleged that the deputies interfered with the defendant’s ability to take the “field sobriety test,” and that one of the deputies hit the defendant in the chest, and that both deputies were shoving and pushing the defendant as he attempted to perform the test. Mr. Russell admitted that he had earlier told an investigating police officer that the defendant appeared intoxicated at the time of the arrest. At the trial, however, he asserted that he did not know whether or not the defendant had been “drunk” at the time of the arrest.

The defendant testified that he had consumed only two beers during the evening prior to his arrest. He testified that he had been driving slowly and that his vehicle had been “jerking” due to mechanical problems.5 The defendant asserted that he successfully completed the first part of the “field sobriety test,” but that the deputies did not permit him to attempt the latter part of the test and immediately arrested him.

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Cite This Page — Counsel Stack

Bluebook (online)
421 S.E.2d 41, 187 W. Va. 658, 1992 W. Va. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-conrad-wva-1992.