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McPeak v. Commonwealth5/2/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
During the late evening of March 31, 2000, someone drove Donald McPeak's Chevy Blazer into the ditch in front of his house. An Allen County jury found that McPeak had been the driver and that he had been intoxicated at the time. Because this was McPeak's fourth conviction within a five-year period of driving under the influence (DUI), the offense was punished as a class-D felony. By judgment entered May 28, 2002, the Allen Circuit Court sentenced McPeak to three years in prison. McPeak contends that the trial court should have directed a verdict in his favor and should not have permitted the Commonwealth to introduce evidence of an aborted blood test. We are convinced that any error was harmless and so affirm the trial court's judgment.
At McPeak's trial, evidence that he had driven the Blazer into the ditch came from his neighbor Clara Johnson. She testified that at approximately eleven that night a loud crash had drawn her to her porch from where, under two yard lights, she had seen a "bronco-like" vehicle stranded in the ditch that parallels the road between her home and McPeak's. She had immediately reported the accident and then returned to her porch. Moments later she had observed a man emerge from the driver's side of the vehicle, walk across McPeak's yard, and enter McPeak's home. Although she could not see the man well enough to identify him, she testified that she was positive the person she had seen was a man.
McPeak testified that a friend, Sharon Hogue, had been driving him home that night when the vehicle had apparently hit a soft spot along the edge of the road and had slid into the ditch. Hogue had gone immediately to McPeak's house, he claimed, but he had remained near the vehicle for a few minutes to check for a gasoline leak. Having satisfied himself that there was no leak, he had then walked across his yard and into the house.
Johnson testified, however, that Hogue had arrived at McPeak's house, in her own car, several minutes after the male figure had emerged from the wreck and gone inside. Although Johnson could not identify the man she saw emerge from McPeak's vehicle and enter McPeak's house, we agree with the trial court that her testimony permitted a rational juror to infer, beyond a reasonable doubt, that the man was McPeak and that he had driven the Blazer into the ditch.
Evidence that McPeak had been intoxicated came from the two deputy sheriffs who responded to Johnson's 911 call. The first deputy arrived within about fifteen minutes of the accident, the second about fifteen minutes later. Both officers testified that McPeak had smelled of alcohol, had had bloodshot eyes, and had had difficulty speaking and walking. Both had believed that McPeak was intoxicated. Although McPeak denied having had any alcohol to drink that night and though Hogue and another friend corroborated that denial, the officers' testimony permitted a rational juror to infer, beyond a reasonable doubt, that McPeak had been under the influence of alcohol at the time he drove the Blazer into the ditch. The trial court did not err, therefore, when it denied McPeak's motions for a directed verdict.
Following McPeak's arrest, the officers took him to the Scottsville Medical Center so that blood might be drawn for a blood test. At the center, McPeak initially consented to the blood test and signed a police form to that effect. He refused to sign a hospital form, however, that provided, among other things, that he acknowledged responsibility to pay for having his blood drawn and for any other services the medical center might provide. Because he refused to sign the acknowledgement, the medica
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