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Luster v. State12/2/1987
The opinion of the court was delivered by: PARKS, Judge.
The appellant, Elmer Junior Luster, was tried by jury in Tulsa County District Court, Case No. CRF-83-2520, and convicted of Assault and Battery with a Dangerous Weapon (21 O.S. 1981 § 645 [21-645]), before the Honorable Margaret Lamm, District Judge. The jury set punishment at ten (10) years imprisonment. Judgment and sentence was imposed in accordance with the jury's verdict. We reverse.
No transcript was submitted to this Court, but several facts were stipulated. Essentially, appellant drove his vehicle east in the westbound lanes of the Broken Arrow Expressway in Tulsa on May 18, 1983. Appellant's vehicle struck three vehicles, injuring all three drivers. Appellant had a blood alcohol content of 0.13. There was no evidence presented that appellant intentionally directed or propelled his vehicle toward any of the victims. Also stipulated by an order nunc pro tunc was that appellant properly filed a motion to quash and a special demurrer, both of which were overruled by the trial court.
We agree with appellant that the motion to quash the information should have been granted. We hold that appellant was charged under the wrong statute, as the legislature had enacted 47 O.S.Supp. 1983 § 11-904 [47-11-904] to cover appellant's crime.
This Court is aware that it recently upheld a conviction of assault with a dangerous weapon in which a drunk driver was involved. See Chastain v. State, 706 P.2d 539 (Okla. Crim. App. 1985). But upon further reflection and an examination of Chastain and the cases preceding it, we have concluded that its underlying rationale — culpable negligence can be substituted for intent — is no longer applicable. Chastain cites cases decided before the legislature passed a recent enactment specifically dealing with the crime of injuring someone while driving under the influence of an intoxicating beverage. The history of the rationale behind Chastain, combined with the passage of 47 O.S.Supp. 1983 § 11-904 [47-11-904], a statute that eliminates an intent requirement, convinces us that the charge of assault and battery with a dangerous weapon as defined at 21 O.S. 1981 § 645 [21-645], is no longer applicable to situations that involve driving a motor vehicle while intoxicated unless a specific intent can be shown. To that extent, Chastain and the cases cited therein are hereby overruled.
The Chastain line of cases in which culpable negligence can be substituted for intent when a drunk driver is involved in a personal injury accident trace their ancestry to Lamb v. State, 70 Okla. Crim. 236, 105 P.2d 799, 803, (1940). There, after generally discussing violations of traffic regulations, the Court said:
he commission of a misdemeanor in operating an automobile in the manner forbidden by takes the place of and supplies the unlawful intent. 1 Bishop's Crim.Law (8th Ed.) § 313 et seq. It then becomes a question of fact whether or not defendant at the time was guilty of culpable negligence in operating an automobile upon the highway in violation of the law.
Id. Even a cursory examination of this passage on which over four decades of caselaw is based reveals a flaw in the logic, and is probably the reason the legislature enacted 47 O.S.Supp. 1983 § 11-904 [47-11-904], a statute designed to dispense with the "fiction" that one must use to punish a drunk driver with assault and battery with a dangerous weapon.
Drunk driving is an inexcusable crime. When it results in injuries but not death, it is only logical that a prosecutor would seek a higher conviction than driving while under t
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