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Johnson v. State8/24/1995
By the Court, Steffen, C. J.:
FACTS
On August 14, 1993, Nevada Highway Patrol Trooper Chava Chevat noticed an approaching car, driven by appellant James Joseph Johnson, exceeding the 55 mile-per-hour speed limit. Chevat turned around and paced the vehicle at 70-plus miles per hour and pulled Johnson over. Johnson and his girlfriend testified that just prior to being stopped, Johnson had sped up to between 70-75 miles per hour to pass a slow-moving line of vehicles. Chevat arrested Johnson for driving with a revoked license, and in the course of searching Johnson, noticed that he spoke in a quiet, slightly slurred manner and did not face Chevat when he spoke to her. Chevat transported Johnson to the Esmeralda County jail, and while doing so, smelled a strong odor of an alcoholic beverage on Johnson's breath. At the jail, Johnson submitted to various field sobriety tests, including a horizontal gaze nystagmus ("HGN") test, a one-leg stand test, and a walk and turn test. Chevat claimed that Johnson failed the tests, but another officer, who was present at the time, testified that Johnson did not pass or fail the tests, but was "borderline." For example, Johnson had a lazy eye which affected the HGN test. Johnson also stood on one leg for 30 seconds, but he did not correctly count to or stop at 30. Finally, Johnson claims that an obstructing stairway in the jailhouse hindered an adequate performance of the walk and turn test, a claim that the State concedes may have merit. Johnson also elected to submit to a breath test, which showed a 0.11 percent blood alcohol content ("BAC") at 2:31 a.m. and a 0.10 percent BAC at 2:36 a.m. Subsequently, Johnson was charged with driving while in At trial, an expert toxicated in violation of NRS 484.379. 1
[111 Nev. 1210, Page 1212]
At trial, an expert witness testified that the breath machine that was used on Johnson had a margin of error of ten percent. This created the possibility that Johnson's BAC was below 0.10 percent at the time of the test. Witnesses for the State testified that Johnson had told them that he had had a mixed drink prior to driving. Johnson and his girlfriend testified that Johnson had nothing to drink from Beatty to Goldfield, that he purchased a forty-ounce bottle of malt liquor in Goldfield, from which he sipped on and off between Goldfield and five minutes before the stop. Johnson testified that the bottle was barely drained, but his girlfriend testified that the bottle was three-quarters full when she later threw it away. During cross-examination of Chevat, Johnson's counsel attempted to impeach Chevat by referring to testimony Chevat provided in an unrelated criminal prosecution. The State successfully objected to this line of questioning; so, out of the presence of the jury, Johnson made an offer of proof, which suggested, according to Johnson, that Chevat arbitrarily subjected persons to blood alcohol tests pursuant to NRS 484.383(1). 2 At the end of the trial, Johnson's counsel asked the court for a lesser included instruction on reckless driving, a lesser-related instruction on reckless driving and a definition of reckless driving. Johnson argued, if the jury sees this as
[111 Nev. 1210, Page 1213]
not being beyond a reasonable doubt as under the influence, or .10, they could well see the reckless driving in that. There's evidence that [appellant] was speeding and he had an open container, and obviously, whatever they find the blood alcohol level to be, that he was drinking and driving. And I think the jury could well put together that, say that's reckless.
The district court refused these instructions, reasoning that:
[The instruction is] rea
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