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Glazier v. State12/22/1992
o increase the paranoia and hallucinations, especially the paranoia. They think that people are after them and such.
The State also points out that the prosecutor was attempting to prove a violation of W.S. 6-2-106(b)(i), the driving while under the influence provision of the vehicular homicide statute rather than the recklessness provision under W.S. 6-2-106(b)(ii). While the indictment and complaint are not tailored that specifically, the evidence presented does reflect that approach, which is certainly permissible.
Under W.S. 31-5-233, driving while under the influence can be proven in two ways. Section (b)(i) prohibits driving if the person has an alcohol concentration of .10 percent or more. W.S. 31-5-233 (1989). Section (b)(ii) prohibits driving if the person is under the influence of alcohol or a controlled substance to a degree which renders him incapable of safely driving. W.S. 31-5-233(b)(ii). If the prosecutor had attempted to prove the aggravated vehicular homicide by using the blood alcohol concentration alone, then the mandatory presumption issue appellant discusses might be before us. However, the prosecutor proved that appellant was incapable of driving safely because he was under the influence of alcohol and a controlled substance. The prosecutor did not merely put on evidence of the blood alcohol concentration and then rest his case. Rather, he presented evidence demonstrating specifically that appellant was incapable of driving safely. Appellant's conviction did not result because he was presumed incapable of driving safely solely because of his blood alcohol concentration, rather he was shown incapable of driving safely because of the effect of the amount of alcohol he had consumed and the accentuating effect of the cocaine. Therefore, the prosecutor did what the statute requires and proved, beyond a reasonable doubt, that appellant was incapable of driving safely because he was operating the motorcycle while under the influence.
CONCLUSION
The evidence in the record is sufficient to support the district court's finding that appellant was driving the motorcycle at the time of the wreck. The evidence is also sufficient to demonstrate that appellant's operation of the motorcycle while under the influence, to the extent he was incapable of driving safely, was the proximate cause of Ms. Davis' death. The district court did not rely on a mandatory statutory presumption to determine appellant's guilt of the crime charged. The evidence demonstrated that appellant was incapable of driving safely because he was under the influence of alcohol and cocaine. Finding no error, appellant's conviction is affirmed.
Affirmed.
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