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State v. Franks2/24/1999
STATE v. FRANKS, 31,641 (La.App. 2 Cir. 2/24/99); ___ So.2d ___
Jody Franks entered a Crosby plea [338 So.2d 584 (La. 1976)] to the crime of DWI, 3rd offense, in exchange for an agreed upon sentence of five years at hard labor with six months to be served without benefit of probation, parole or suspension of sentence. The remainder of the sentence was suspended and defendant was placed on active supervised probation subject to certain conditions. Defendant appeals and assigns errors. In addition to seeking reversal of the trial court's denial of his motion to quash the two predicate offenses, defendant urges that the trial court erred by finding him guilty of DWI, 3rd offense; by finding probable cause existed for defendant's arrest; by failing to sustain defendant's motion to suppress; by admitting into evidence the DPS rights form over his objection and by failing to dismiss due to errors patent on the face of the record. Finding no merit to these complaints, we affirm the conviction and sentence.
FACTS
While on duty on December 24, 1995, in Franklin Parish, Louisiana, State Trooper Randal Lowery responded to a call from the Franklin Parish Sheriff's Office concerning an accident on Highway 572. A deputy showed Trooper Lowery a vehicle which had run off the roadway and was stuck in the ditch across the opposite side of the highway from its lane of travel. Two persons were sleeping in the pickup truck which was not running and was undamaged. Ruts on the shoulder revealed the path of the truck into the ditch.
When the trooper awoke the defendant, who occupied the driver's seat, he detected a strong odor of alcohol and noted defendant's eyes were red and bloodshot. Disoriented and unsteady on his feet, the defendant appeared intoxicated and required the trooper's assistance in exiting the vehicle. The defendant informed Trooper Lowery that he had been drinking in Starkey County, Mississippi and at the Highway 4 Bar in Tensas Parish. The trooper estimated that the bar was about ten miles away. The trooper administered two field sobriety tests: the horizontal gaze nystagmus test and the walk and turn test. Swaying badly during both, the defendant tailed the horizontal gaze test and did not touch heel to toe on the walk and turn test.
After the tests, the trooper placed the defendant under arrest for careless operation and DWI and advised him of his rights by reading him the Miranda warnings. Trooper Lowery declared that defendant was awake knew what was going on and was not so intoxicated that he could not understand his rights. The trooper testified that defendant understood and waived his rights. En route to the detention center, defendant stated that he lost control of the car and went into the ditch.
At the detention center. Trooper Lowery again read defendant his rights. Defendant explained that he had been driving the vehicle but could not remember where he was going. Defendant stated he started drinking in Mississippi where he had two to six drinks plus another at the Highway 4 Bar. Defendant also said he had taken Nyquil and some Darvocet, but he had nothing to drink after the accident. The officer did not observe any liquor, mixed drinks or beer in the vehicle but acknowledged that it was possible some alcohol could have been in the truck under the seat. Trooper Lowery read the defendant his rights before ordering a chemical test for intoxication. Defendant consented and signed the form. The Intoxilizer test result revealed defendant's BAC was .167 grams/percent, well over the statutory definition of DWI.
DISCUSSION
Assignments of Error 1 and 2
Defendant contends that the trial court erre
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