State v. Lokey2/25/2003
CONVICTION CONDITIONALLY AFFIRMED; SENTENCE VACATED AND EVIDENTIARY HEARING ORDERED, REMANDED FOR RESENTENCING, IF APPROPRIATE.
The Defendant, Paul C. Lokey, appeals from the sentence after conviction of one count of driving while intoxicated (DWI), fourth offense. We conditionally affirm the conviction, vacate the sentence and remand for evidentiary hearing and resentencing, if appropriate.
The Defendant was charged on October 4, 2001 with one count of DWI, fourth offense, in violation of La.R.S. 14:98(E) which allegedly occurred on April 16, 2001. He pled not guilty and after a bench trial was found guilty. The Defendant was sentenced on April 1, 2002 to ten years imprisonment at hard labor.
Officer Nicholas Cottone of the Westwego Police Department testified that in response to a call on April 16, 2001, at approximately 9:07 p.m., he was traveling eastbound on Fourth Street in Westwego. The Defendant's vehicle was traveling westbound on Fourth Street. The officer started to turn right when he reached the traffic signal at Avenue A. Before he could make the turn, the Defendant turned left in front of him onto Avenue A, almost striking the officer's marked police unit. The Defendant continued traveling on Avenue A and almost struck a utility pole.
Officer Cottone followed the Defendant for three-quarters of a mile, activated his overhead lights, and stopped him at Avenue A and Tenth Street. Officer Cottone testified that when the Defendant got out of the vehicle, he had difficulty standing, smelled heavily of alcohol, and his speech was extremely slurred. Although Officer Cottone is qualified to administer the state field sobriety test, he was not qualified to administer the intoxilyzer test. Following procedure, Officer Cottone requested a Louisiana State trooper to come to the scene.
Trooper Donald Hebert testified that he arrived at the scene and met with Officer Cottone. Trooper Hebert observed that the Defendant had urinated on himself. He detected a strong odor of alcoholic on the Defendant's breath and noticed that the Defendant's speech was very slurred. After agreeing to submit to a standardized field sobriety test, the Defendant failed the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. As a result, the Defendant was arrested, advised of his rights, handcuffed, placed in the back of Trooper Hebert's unit, and brought to the correctional center.
At the correctional center, the Defendant refused to sign the intoxilyzer rights form, take the intoxilyzer test, or answer questions related to possible medical conditions that would explain his conduct. Trooper Hebert testified that the intoxilyzer machine was working that day.
Roy Vinnett (Vinnett), the Defendant's next door neighbor, testified that he lived on Avenue A near Tenth Street on April 16, 2001. Although he knew the Defendant from the neighborhood, he did not know the Defendant personally. On the date of the arrest, Vinnett was standing outside his home, talking to a Westwego police officer, when he noticed the Defendant drive by his house. At the time, Vinnett was making a report about a problem with a drug dealer who had teenagers selling crack cocaine on the corner near his home. According to Vinnett, after the Defendant passed, he stopped at the stop sign, went down three houses, turned around, and came back. Vinnett did not observe anyone following the Defendant, but saw the police officer approach the Defendant when the Defendant stopped.
Officer Cottone, dispatched to the area because of a report of gunshots being fired, did not recall Vinnett making a report but, when he arrived, numerous other polic
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