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Nowack v. State5/9/1989
On June 5, 1986, while drunk, Everett Nowack operated a vehicle on the streets of Casper, Wyoming. He drove across the median of Poplar Street and ran head-on into another vehicle. That collision resulted in serious injuries to one of the occupants of the other vehicle. For his acts he was criminally charged.
On October 30, 1986, he pled guilty in Natrona County Court to causing serious bodily injury to another as a result of driving while under the influence of intoxicating liquor, in violation of § 31-5-233(a) and (g), W.S. 1977 (hereafter "injury-producing D.W.U.I."). On January 16, 1987, he was found guilty in District Court of aggravated assault and battery in violation of § 6-2-502, W.S. 1977. Both the guilty plea and the later conviction were based upon the events of June 5, 1986. This appeal comes from the aggravated assault and battery conviction.
We are called upon to decide:
(1) Whether the existence of the injury-producing D.W.U.I. statute precludes the state from charging aggravated assault and battery when serious bodily injury results from an alcohol related vehicular accident, and
(2) Whether the double jeopardy clause of the United States or the Wyoming Constitution bars prosecution of the defendant for aggravated assault and battery after he has plead guilty to injury-producing D.W.U.I. for the same incident.
The district court held that the State was not constrained from prosecuting the aggravated assault and battery. For the reasons stated below, the judgment of the district court is affirmed.
On June 30, 1986, Nowack was charged in Natrona County Court with three criminal counts: first, causing serious bodily injury to another resulting from driving under the influence in violation of § 31-5-233(a) and (g), W.S. 1977; second, operating a motor vehicle without liability insurance in violation of § 31-4-103(a), W.S. 1977; and third, aggravated assault and battery in violation of § 6-2-502(a)(i), W.S. 1977. The first two counts are misdemeanors; the third is a felony.
Upon motion by the State the two misdemeanors were dismissed on July 22, 1986, but the felony went to preliminary hearing. Following the preliminary hearing on July 28, 1986, Nowack was bound over for trial in the district court on the charge of aggravated assault and battery. After the preliminary hearing, and for reasons not disclosed in the record, the misdemeanors, earlier dismissed at the State's request, were refiled and Nowack pled guilty to both. He was sentenced by the county court for those offenses on October 30, 1986. Then, on November 18, 1986, he moved in district court to dismiss the aggravated assault and battery charge. In considering his motion the district judge said: "One problem with the argument of defendant is that it would reach an absurd result, whereby a person who was drunk and driving recklessly, resulting in serious bodily injury, would be guilty only of a misdemeanor, while a sober reckless driver causing serious bodily injury would be guilty of a felony." The motion was denied and the defendant was later found guilty after a bench trial.
The first issue raised by appellant is whether the State can charge him with a felony, aggravated assault and battery, arising from a vehicular accident involving both reckless and drunken driving. He argues that the State must charge him with the statute which, in his view, specifically (and therefore exclusively) covers that conduct, to-wit § 31-5-233, W.S. 1977, driving or having control of a vehicle while under the influence of intoxicating liquor or controlled substances.
The United States Supreme Court has
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