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Baird v. State3/28/2003
Andrew Baird appeals his conviction of driving under the influence of alcohol to the extent that he was a less safe driver. He argues, among other things, that the trial court erred by instructing the jury that it could infer, from his refusal to take a chemical test, that the test would have shown the presence of alcohol "which impaired his driving." We agree that this instruction was improper, and we reverse.
On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be viewed in the light most favorable to the verdict. So viewed, the evidence shows that on the night of June 17, 2000, Dawson County Deputy Sheriff Mary Lundy saw a truck pulling a trailer with a boat. At one point, the trailer veered off the right side of the road. Lundy activated the lights in her patrol car, but the truck did not stop. She then turned on her siren, and the truck "did eventually pull over."
As Lundy approached the driver's side of the truck, she smelled alcohol. The driver, Baird, had "very red, very watery" eyes and a flushed face, but he spoke normally and politely and did not stagger when he exited the truck. Baird told her that he had "had drinks earlier at the lake."
Lundy asked Baird to perform some field sobriety tests, and he agreed. She told him to recite the ABCs from A to W "without singing or rhyming." Baird "did it correctly," except he failed to stop at W. Lundy then asked Baird to perform four sequences of an "index to thumb" test while counting aloud, which she demonstrated for the jury. Baird counted silently and "only went through it twice." Finally, Lundy asked Baird to breathe into an Alcosensor, which tested positive for the presence of alcohol.
Lundy arrested Baird and read him his implied consent rights from a card she carried with her. Baird "immediately refused" to take an Intoxilyzer 5000 breath test, saying his attorney "had told him never to take any . . . breath test." Lundy later found three empty beer cans in Baird's truck and a cooler in the back containing 13 beers. This was the first DUI stop that Lundy had handled by herself.
Baird was charged with driving under the influence to the extent that it was less safe for him to drive and with failure to maintain lane. At trial, Baird's friend Tina Painter testified that on the morning of June 17, Baird had brought his boat, at her invitation, to a park where she was playing in a softball tournament. In between games, Painter, Baird and others had gone out on the boat, "talking and socializing" and drinking beer. Painter had seen Baird drink "no more than three" beers during an eight-hour period. In Painter's opinion, Baird had not been under the influence of alcohol when he had left to drive home that evening.
Baird testified that he had drunk three beers that day. He explained that he had not stopped his truck immediately because the large boat likely had obscured his view of Lundy's lights, and after hearing the siren he had waited for a safe spot to pull over. He said that he had agreed to perform the field sobriety tests because he had not felt that he was under the influence of alcohol. He had not heard Lundy ask him to stop reciting the alphabet at W, and he thought he had followed her instructions accurately on the index to thumb exercises. According to Baird, Lundy had read the implied consent warning in a fast, confusing manner and he had told her that he did not understand it. At the police station, another officer asked Baird to take the Intoxilyzer test, but he refused because a woman who had been "spitting" and "wild" had just used the machine and Baird was afraid it had not been cleaned.
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