State v. Dahlgren

627 S.W.2d 53, 1982 Mo. LEXIS 425
CourtSupreme Court of Missouri
DecidedJanuary 12, 1982
DocketNo. 62978
StatusPublished
Cited by1 cases

This text of 627 S.W.2d 53 (State v. Dahlgren) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dahlgren, 627 S.W.2d 53, 1982 Mo. LEXIS 425 (Mo. 1982).

Opinion

SEILER, Judge.

Defendant was convicted of manslaughter by culpable negligence in operating an automobile and sentenced to three years imprisonment. Section 565.005, RSMo 1978; § 565.031, RSMo 1978. The charge grew out of an automobile collision occurring August 10, 1979, on Glenstone Avenue in Springfield, Missouri, between a 1977 Chevrolet Monte Carlo, operated by defendant, and a 1978 Ford Pinto. Following the collision the Pinto was engulfed by flames from burning gasoline and a passenger in the Pinto burned to death.

The case was transferred here on application of defendant after an opinion was handed down by the court of appeals, southern district, affirming the conviction. We ordered the transfer primarily to consider whether the taking and introduction into evidence of a blood sample from defendant was proper under the circumstances. Now that the case is here, however, we will not limit our opinion to the point just mentioned, but will consider it as though here on original appeal. In so doing, we acknowledge our indebtedness to the author of the opinion in the court of appeals, Judge James K. Prewitt, and adopt much of his opinion verbatim.

We initially consider defendant’s first point. Following the collision defendant was taken to a hospital for treatment of injuries and three blood samples were taken there. Defendant signed a consent to the taking of the blood specimens, but she contends that this consent was not freely and knowingly given and that the trial court erred in overruling her motion to suppress and in admitting the results of the blood alcohol test in the trial.

Although no claim is made by defendant of failure by the state to make a submissi-ble case, we must set forth the facts in some detail because of their bearing on the claimed errors. At about 12:24 a. m., August 10, 1979, Officer Niehouse of the Springfield Police Department was parked in his police vehicle on South Glenstone on the east side of the street. His attention was attracted by the “loud motor noise” made by defendant’s Chevrolet Monte Carlo automobile approaching from the south some two to two and one-half blocks away. To the north a short distance, a man named C. S. Nold had brought his 1978 Ford Pinto automobile to a stop on Glenstone, headed north at the intersection with Grand Avenue waiting for the traffic signal for north and south bound traffic at that intersection to turn from red to green. Mary Lee Scheidt was a passenger in Nold’s car.

Officer Niehouse aimed his radar speed gun as defendant approached him and obtained a reading of fifty-four miles per hour and a second reading of sixty-seven miles per hour after the car passed. The officer’s estimate of defendant’s speed, based on his own traffic experience, was sixty miles per hour. The speed limit was forty miles per hour. Officer Niehouse started pursuing defendant’s vehicle and about that time he observed the collision between defendant’s vehicle and the stopped Pinto at the intersection of Grand and Glenstone and the eruption of flames. The back end of the Pinto was smashed close to the rear seat. The interior was completely burned. The vehicle was located about 160 to 190 feet north of the intersection after the accident.

Defendant had gotten off work about 7:30 p. m. She testified she had part of one drink — scotch and soda — with a friend at a nearby bar, staying there about an hour. Then she and a companion went to a restaurant-bar, the Shady Inn, where they were joined by two or three others. There defendant had some more drinks — again scotch and soda — “possibly less than four” and “definitely” less than six. She and two others left the Shady Inn in defendant’s automobile, defendant driving, about 11:30 p. m. or midnight, intending to go to a local drive-in for breakfast and coffee. Her tes[55]*55timony was that she was not feeling any effects from alcohol when she left Shady Inn and was not intoxicated.

At the scene of the accident the investigating police officer, Niehouse, noticed there was blood running down defendant’s face. He could smell intoxicants on her breath, could see her eyes were bloodshot and noticed that her speech was somewhat slurred. Defendant and the other people in her automobile were taken to a local hospital in an ambulance. Officer Niehouse went to the hospital about 1:45 or 2:00 a. m., obtained the doctor’s permission to talk to the defendant, who was lying in bed in the emergency room, and asked her to sign a release for a blood sample. He said she had been in an accident, that he believed she was intoxicated and that if she were released from the hospital he intended to book her on a charge of driving while intoxicated. Defendant did not say anything.

Fifteen to twenty minutes later the officer returned to the emergency room, again told defendant she had been in an accident and that he thought she was intoxicated and again asked her to sign the release. She said she would sign. Niehouse had a hospital secretary type a consent form, which he read to defendant. He testified she was coherent and seemed to understand what she was signing. He placed the form in her hands and she signed. Niehouse was firm in his opinion that defendant was intoxicated, but not “extremely” so. The blood samples were taken by a medical technologist on the hospital staff, Cynthia Eggert at 2:40 a. m. Eggert told defendant she needed to draw a sample of blood. Defendant appeared drowsy and asked if she could wait awhile. Eggert said “they” wanted it done now and asked if defendant had signed the release form. Defendant answered yes, offered the witness her arm, and the blood (three samples) was then drawn. No one else was in the room at the time. Eggert did not form an opinion as to whether defendant was intoxicated, but said defendant did not “really do or say anything” that led the witness to believe she was intoxicated.

Dr. Elms, who practices in emergency medicine, saw defendant around 1:00 a. m. in the emergency room. He smelled alcohol on her breath and person, noticed slurred speech, somewhat uncoordinated movement and a seeming inability to give a history of what had happened to her. He expressed the opinion that there was a “level of intoxication present”, but was not more specific. As to physical injuries he found only an abrasion and swelling of the forehead. There was no bone injury to the head or neck. Dr. Elms kept defendant under periodic observation in the emergency room until 5:00 or 5:30 a. m., during most of which time she was sleeping, and then released her. At that point, Dr. Elms said she was much more alert, was oriented as to time and place and her speech was not slurred.

It does not appear how defendant got from the hospital to the Springfield police station where she arrived around 6:00 to 6:30 a. m. There is no evidence that defendant was brought to the station by the police or in any form of custody. There Officer Niehouse informed her she was under arrest, read defendant the Miranda rights from a card, and at 10:00 a. m. read the rights to defendant the second time. Both times defendant told Niehouse she understood her rights. No questioning was done at 6:00 a. m., but on the 10:00 occasion she signed a waiver and then Officer Nie-house and Sgt. Worsham questioned her about the collision, reduced the questions and answers to writing and she signed the statement. In this statement she said that she had had five drinks from 7:00 p. m. until the accident. She was asked whether she had been drinking too much to be driving.

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Related

City of Jackson v. Langford
648 S.W.2d 927 (Missouri Court of Appeals, 1983)

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Bluebook (online)
627 S.W.2d 53, 1982 Mo. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dahlgren-mo-1982.