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State v. Prater2/16/1999
The Defendant, Leonard Huston Prater, appeals as of right his conviction of third offense DUI following a jury trial in the Coffee County Circuit Court. The trial court sentenced him to eleven (11) months and twenty-nine (29) days, suspended after 180 days, suspended his driver's license for ten (10) years, and fined him $5,000. The trial court also ordered the conditional forfeiture of Defendant's vehicle. In this appeal, Defendant raises the following four (4) issues:
"1. Whether Defendant's rights against double jeopardy were violated;"
"2. Whether Defendant was properly convicted of third offense DUI;"
"3. Whether the trial court committed sentencing errors; and"
"4. Whether the trial court erred in ordering the conditional forfeiture of Defendant's vehicle."
After a careful review of the record, the judgment of the trial court is affirmed.
On September 9, 1996, Investigator William Marcom of the Coffee County Sheriff's Office was driving home on Highway 53 when a pickup truck crossed the center line into his path, "nearly striking the vehicle in front of ." According to Marcom, he was then forced to swerve onto the right shoulder to avoid a collision. Investigator Marcom made a U-turn, followed the pickup, and then turned on his dashboard blue light and his blue strobe lights in the grill to alert the driver to pull over. The driver of the pickup truck was Defendant.
In asking Defendant for his driver's license, Marcom noticed the odor of alcohol coming from inside the vehicle. Investigator Marcom said that he asked Defendant how much he had had to drink that evening and Defendant responded "about six beers." When Defendant got out of his truck, Marcom observed Defendant to be unsteady on his feet. He also noticed that Defendant's speech was slurred and that his eyes were bloodshot. Marcom administered one field sobriety test, the alphabet test. Defendant was not able to correctly complete the test as he missed about every fourth letter and then finally had to stop at the letter "P." Investigator Marcom radioed for Deputy Lee Nettles to assist in the arrest. Deputy Nettles also noticed that Defendant was unsteady on his feet. Nettles testified that at one point he had to grab Defendant's arm to prevent him from falling over.
Once they arrived at the Coffee County Jail, Officer Lisa Brazier "booked" Defendant. She testified that Defendant fit the description of someone who was under the influence of alcohol. Sergeant Rodney Banks then spoke with Defendant about taking a breath alcohol test, and Defendant subsequently agreed to take it. Sergeant Banks conducted the breath alcohol test using the Intoximeter 3000 machine. The report showed Defendant's breath alcohol level to be .21 percent.
Defendant testified that prior to September 9, 1996, he had been in the midst of a divorce that he didn't want. He said that it had been a very difficult time in his life, and that at times he was "bezerk." Defendant testified that he had been at a friend's house, Floyd Edsel Jones, on September 9, 1996, to watch Monday Night Football. He testified that he had a few drinks of George Dickel whiskey and that Edsel had also been drinking from the same bottle of George Dickel. He also said that he had eaten some chips and dip that night at Edsel's house, however, Edsel testified that no chips or dip had been served that night. Defendant testified that when he left Edsel's house that the liquor bottle was about half full. According to Defendant, he did not feel under the influence of alcohol when he left Edsel's house. Edsel also testified that Defendant did not appear to be drunk when he left Edsel's h
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