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Kincannon v. State10/23/1975
him a couple of drinks. He then left the club and got into his car by himself. In regards to his driving, he made the following statement: "I pressed on the accelerator a little bit too hard, I guess." (Tr. 36) The defendant stated that he had no recollection of the events of the accident or its cause, but he did recall seeing the injured boy after he climbed out of the overturned car. As to the marihuana discovered by Officer Doty, Kincannon testified that he had never seen it before.
In his first assignment of error the defendant contends that the decision of the trial court to revoke the suspension of his sentence was not sustained by competent evidence. However, this assignment is premised upon several propositions. The defendant first contends that the results of the breathalyzer test and the plastic baggie found to contain marihuana were obtained as the result of an illegal arrest and unlawful search and seizure. He then maintains that the evidence was insufficient to establish that he knowingly possessed the marihuana. Finally, he asserts the State failed to establish that the breathalyzer test was administered in the manner prescribed by law, and that such test results are not in any event admissible in such proceedings.
Under the circumstances previously outlined, we are of the opinion that the evidence was sufficient to justify a warrantless arrest upon the basis that a public offense was being committed in the presence of the officers. This Court has previously held that public intoxication supports a warrantless arrest by an officer arriving at the scene of an accident. See, Jackson v. State, Okl.Cr., 437 P.2d 559 (1968). Furthermore, the marihuana was discovered under circumstances seemingly sufficient to invoke the plain or open view doctrine as justification for the seizure thereof. See, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). However, even assuming otherwise, the defendant cannot now complain of the admissibility of these items of evidence, as the record fails to reveal that he moved to suppress or otherwise objected to the admissibility of either the breathalyzer test results or the marihuana before the trial court. As set forth in Rider v. State, Okl.Cr., 494 P.2d 347, 349 (1972), this Court has repeatedly held that:
". . . It is a well established rule in this jurisdiction that an objection to evidence allegedly obtained by illegal search and seizure must be interposed at the first opportunity and should be made either at the beginning of a trial by motion to suppress evidence, or in the course of examination as soon as it becomes apparent that the State will rely thereupon, and defendant failing to make timely objections waives the right to be heard on such question. . . ."
The defendant further objects to the admissibility of the breathalyzer test results upon the basis that the State failed to establish that the breath specimen was obtained within not more than two hours after defendant's arrest as required by 47 O.S.Supp. 1974 § 756 [47-756](e), and that the test was administered in accordance with the rules of the Board of Chemical Tests for Alcoholic Influence as required by 47 O.S. 1971 § 759 [47-759]. In support thereof, the defendant cites Westerman v. State, Okl.Cr., 525 P.2d 1359 (1974). However, this proposition too must fail, as in that case we again recognized that:
" ailure to interpose a Motion to Suppress a timely objection constitutes a waiver and preserves nothing for review on appeal." (at page 1362)
As to defendant's contention that breathalyzer test results are not admissible in such proceedings under 47 O.S.Supp. 1974 § 756 [47-756], we need only observe that
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