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Kincannon v. State10/23/1975
in Warden v. State, Okl.Cr., 499 P.2d 937 (1972), we held that under that statute the results of a breathalyzer test are admissible in the trial of any criminal action or proceeding arising out of acts committed by a person driving under the influence of alcohol, including a prosecution for manslaughter based on driving under the influence of intoxicating liquor, and the results of such a test are not limited to prosecutions for driving while intoxicated.
The defendant's contention that the evidence was insufficient to establish that he knowingly possessed the marihuana is likewise without merit. We need here only observe that violation of the conditions of such probation need only be shown by a preponderance of the evidence, and that upon compliance with statutory requirements and considerations of fundamental fairness, the decision to revoke suspension lies within the sound discretion of the trial court. See, Fain v. State, Okl.Cr., 503 P.2d 254 (1972).
In his second and final assignment of error, the defendant contends that revocation of the entire five year sentence is excessive. We have previously held that the decision of the trial court to revoke such a sentence in whole or only in part lies within the sound discretion of the trial court and that decision will not be interfered with absent an abuse thereof. See, Phipps v. State, Okl.Cr., 529 P.2d 998 (1974). The defendant has failed to show any abuse of discretion by the trial court and none is evident from the record herein.
It is therefore the opinion of this Court that the trial court's order revoking defendant's suspended sentence should be, and the same hereby is, affirmed.
BRETT, P.J., and BLISS, J., concur.
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