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State v. Blackburn1/28/2004
Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P.
The defendant, Walter Blackburn, Jr., was charged by bill of information with DWI, 4th offense, a violation of LSA-R.S. 14:98. The state subsequently amended the bill of information to charge the defendant with DWI, 3rd offense. After a bench trial, the defendant was found guilty as charged. The trial court sentenced the defendant to serve one year at hard labor and to pay a fine of $2,000 and court costs, or in default of payment, to serve six months in the parish jail. The fine and all but thirty days of the defendant's sentence were suspended and the defendant was placed on supervised probation for two years with special conditions, including home incarceration for eleven months. The trial court denied the defendant's motions for judgment of acquittal and for new trial. Defendant now appeals. We affirm.
FACTS
On March 8, 2002, Caddo Parish Deputy Sheriff Rick Anderson was working patrol in the south sector of Caddo Parish. At 5:37 p.m., Deputy Anderson observed the defendant's grey Nissan pick-up truck approaching his vehicle at a high rate of speed at the 1100 block of Sparks Davis Road. Deputy Anderson used his radar to confirm that the defendant was speeding. He clocked defendant's speed at 69 m.p.h. in a 45 m.p.h. speed zone. According to Deputy Anderson, he turned his patrol car around and stopped the defendant's pick-up. A female juvenile was in the vehicle with the defendant.
Deputy Anderson testified that the defendant got out of the driver's side of the pick-up truck. When Deputy Anderson asked the defendant for his driver's license, defendant responded that his license had been suspended. Deputy Anderson testified that he immediately observed a strong odor of an alcoholic beverage on defendant. He testified that the defendant's eyes were "glossy over, and that's normal with someone who had been impaired." Deputy Anderson further testified that when defendant began talking to him, the defendant informed him that he had prior DWI arrests and "didn't need this type of stuff." Because of the odor of alcohol on defendant's breath, his gestures and his posture, Deputy Anderson felt defendant was alcohol-impaired. He then advised the defendant of his Miranda rights. Deputy Anderson administered the defendant field sobriety tests, which he failed to pass.
Defendant informed Deputy Anderson that he could not perform the field sobriety tests "even if he was dead sober." The defendant informed the deputy that he had drunk quite a bit and that he had been drinking less than twenty minutes before the traffic stop. The defendant admitted that he had drunk a six-pack over an unspecified period of time. Defendant also admitted that he should not have been driving. Deputy Anderson placed the defendant under arrest and transported him to the Caddo Correctional Center. Defendant refused to take the Intoxilyzer 5000 test.
DISCUSSION
By his sole assignment of error, the defendant contends the evidence was insufficient to sustain his conviction for driving while intoxicated, 3rd offense. Defendant does not challenge the sufficiency of the evidence presented to support the two predicate offenses. Rather, he specifically challenges the evidence presented to support the instant DWI conviction.
LSA-R.S. 14:98 provides, in pertinent part:
A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of
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