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State v. Volgamore1/28/2004
Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P.
The defendant, Kevin R. Volgamore, was charged by bill of information with operating a vehicle while intoxicated, fourth offense, a violation of LSA-R.S. 14:98. After a bench trial, the defendant was found guilty as charged. Pursuant to LSA-R.S. 14:98(E)(4)(b), the trial court imposed a sentence of ten years at hard labor without the benefit of probation, parole or suspension of sentence, with credit for time served. The court ordered that the sentence be served consecutively with any other sentence previously imposed. Defendant's motion to reconsider sentence was denied. Defendant now appeals his conviction and sentence. For the following reasons, we affirm the conviction, amend the sentence and affirm as amended.
FACTS
On September 2, 2002, at approximately 1:43 a.m., Vivian Police Department Sergeant J.P. Hart observed a brown Ford pickup truck execute a wide sweeping right turn, crossing the center line, while traveling in a residential area of Vivian, Louisiana. Sergeant Hart followed the pickup truck for about one-half of a mile and observed the driver turn at two intersections without using a turn indicator or making a complete stop. Sergeant Hart also noticed the pickup truck was traveling at less than one-half the posted speed limit for the area. After noting that the driver of the pickup truck had committed several minor traffic violations, Sergeant Hart stopped the truck and asked the driver to approach the rear of the vehicle. The driver of the vehicle was later identified as the defendant.
Sergeant Hart testified that as the defendant approached the rear of the vehicle, the defendant was unsteady on his feet and he had a strong odor of alcohol on his breath and person. Sergeant Hart advised the defendant of the reason he was stopped and informed him of the traffic violations. Sergeant Hart observed a twelve-pack of beer in the pickup truck and one opened can of beer on the floor between the driver and passenger seats. The passenger in the vehicle was known to Sergeant Hart as Stacy Cook.
Prior to the administration of the three field sobriety tests, the defendant informed Sergeant Hart that at sometime during the day, he had visited the river boat and had been drinking; however, he did not inform the officer of the quantity of alcohol he had consumed. The defendant failed the first sobriety test, the horizontal gaze nystagmus test, or HGN. The defendant stated that he had a bad left knee and refused to take the second test, the nine-step walk-and-turn test. Sergeant Hart twice administered a third and final field sobriety test, the one-leg-stand test. On his first attempt, the defendant did not follow the instructions. He was unable to perform the test on the second attempt. Sergeant Hart informed the defendant of his Miranda rights, placed him under arrest for suspicion of DWI and transported him to the Vivian Police Department.
While at the police department, the defendant was given a form explaining his rights relating to chemical tests to determine the level of intoxication. The defendant refused to sign the form and provide a breath sample for the Intoxilizer-5000. The defendant was uncooperative and disruptive, and he threatened the officers.
DISCUSSION
Assignment of Error Number Two:
By this assignment of error, the defendant contends the evidence presented was insufficient to sustain a conviction of driving while intoxicated, fourth offense. The defendant argues that the evidence taken as a whole does not support a finding of guilt beyond a reasonable doubt.
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