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State v. Hight3/1/2002
ior offenses.
In his defense, Hight testified concerning medical problems that may have contributed to his inability to perform the field sobriety tests. Hight said that he had trouble walking due to arthritis in both knees and a history of back surgery, for which he took pain medication. Hight attempted to replicate in the courtroom two of the field sobriety tests, presumably to show that even when sober, he could not complete the tests. He also testified that when he was arrested in April, 1998, his medical condition was worse. Hight then testified concerning his date of birth and social security number. Furthermore, he admitted pleading guilty to two prior DWI offenses.
On rebuttal, both officers testified that Hight's attempt to complete in the courtroom the heel to toe test and one-leg test looked different than his attempts on the date of his arrest and that Hight's failure during the courtroom rendition to complete the tests appeared to stem more from physical impairment, not alcohol impairment.
Discussion
In his first assignment of error, Hight argues that the trial court erred by permitting the State to correct the date of the alleged offense (from April 30, 1998, to April 3, 1998), after the trial was underway, and during the first witness' testimony. Hight argues that under State v. Ayres, 509 So.2d 763 (La. App. 2d Cir. 1987), amending the date of the alleged crime once trial has begun is precluded. The State argues that in this case, the date of the offense is not an essential element of the crime, so amendment is permitted. When the date or time is not an essential element of the offense, it is a defect of form that may be amended at any time. La. C.Cr.P. art. 468 ; La. C.Cr.P. art. 487; State v. Ayres, supra.
The date of the offense is not an essential element to the offense of operating a vehicle while intoxicated. La. R.S. 14:98; State v. Hernandez, 410 So.2d 1381 (La. 1982). The elements of operating a vehicle while intoxicated include: (1) the operating of any motor vehicle when (2) the operator is under the influence of alcoholic beverages; or (3) the operator's blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or (4) the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964. Clearly, the State need not prove the date of the alleged offense to obtain a conviction for DWI. Therefore, the trial court did not err and this assignment lacks merit.
By his second and third assignments of error, Hight asserts that the trial court erred in failing to exclude statements he made and the officers' testimony regarding the field sobriety tests. Hight contends that his statements and the field sobriety evidence were obtained without an advice of rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Nevertheless, our review indicates that Hight failed to make a pre-trial motion to suppress his statements, as well as the evidence obtained from the field sobriety tests. Failure to file a motion to suppress prevents the defendant from objecting to the admissibility of evidence on any ground assertable by a motion to suppress. La. C.Cr.P. art. 703(F) ; State v. Walker, 534 So.2d 81 (La. App. 3d 1988). Accordingly, these assignments of error are without merit.
Defendant's fourth, fifth, and eleventh assignments of error argue that the officers gave improper opinion testimony under La. C.E. art. 701. The defense contends that while a witness may properly testify as to whether an individual has been drinking alcohol, on
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