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Hames v. State9/23/1991
Rehearing Denied October 15, 1991.
RICHARD ERIC HAMES, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE.
An Appeal from the District Court of Cleveland County; Preston Trimble, District Judge.
Fred J. Shaeffer, Joel S. Barr, Norman, for appellant.
Robert H. Henry, Atty. Gen., Steven S. Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.
AFFIRMED.
OPINION
The opinion of the court was delivered by: LUMPKIN, Vice Presiding Judge.
Appellant Richard Eric Hames was tried by jury for two counts of First Degree Manslaughter in Case No. CRF-89-777, in the District Court of Cleveland County. The jury found him guilty of two counts of Negligent Homicide (47 O.S. 1981 § 11-903 [47-11-903]) and recommended punishment of one year imprisonment in the county jail and a fine of one thousand dollars ($1,000.00) on each count. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this Judgment and Sentence that Appellant appeals.
On June 11, 1989, at approximately 1:12 a.m. Officer Robert Moore, Norman Police Department, respondent to the scene of a reported accident. Along East Robinson Street at approximately 60th Street he found a pickup truck on the south side of the road. The pickup was damaged on the right front corner. A few feet up the road he found the body of Lori DeShazer. Further along he found the body of Scott Eilerts. Bystanders were performing CPR on the bodies, although Officer Moore felt no pulse. Approximately 22 feet south of the road was found a three wheeled all-terrain vehicle (ATV), with damage to the rear.
Appellant approached Officer Moore and stated that he was the one the officer was looking for. Appellant admitted driving the truck and hitting the ATV. Detecting an odor of alcohol about the Appellant's breath and observing his watery eyes, slurred speech and unstable gait, Officer Moore opined that Appellant was intoxicated. Appellant was placed under arrest, transported to the Cleveland County Jail and given a breathalyzer test. He registered .20.
Evidence presented at trial showed that the decedents had been at a party at the home of J. Vaught on East Robinson. The ATV had been in the garage most of the night. The decedents took it out of the garage, drove it around the yard and then onto the street, driving east on Robinson. A pickup truck driven by Appellant came up behind them, hit the ATV causing the decedents to be thrown off the vehicle and the ATV to be propelled into the ditch.
In his first assignment of error, Appellant contends that the breathalyzer machine used did not meet the requirements set forth by the Board of Alcohol and Drug Influence, pursuant to 47 O.S. 1981 § 759 [47-759].
The Officer's Affidavit prepared by the officer administering the breathalyzer shows that the test was given on a Stephenson 900 along with a breath simulator known as Smith & Wesson Mark IIA.
Rule 85-22 for the Board of Tests for Alcohol and Drug Influence (hereinafter referred to as the Board), approves the use of any of six (6) specifically listed breath simulator devices. The Board also approves the use of the "predecessor agency" of any of the six (6) specifically listed machines. Included in the approved list is "Model 900 and Model 900A Breathalyzer (manufactured by National Draeger, Inc., Pittsburgh, Pa. 15230 or its predecessors or successors)".
At the pre-trial hearing on Appellant's motion to suppress the
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