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State v. Vaughn5/14/2004
lls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).
Defendant was charged with driving while intoxicated, in violation of LSA-R.S. 14:98. 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 alcoholic beverages;
In his opening statement, counsel for defendant conceded that defendant was operating a vehicle. In this assignment of error, defendant argues that the state did not prove beyond a reasonable doubt that he was under the influence of alcoholic beverages. He insists that the breathalyzer machine malfunctioned and that, crediting the testimony of his girlfriend as true, it would have been impossible for him to have consumed enough alcohol to cause a reading of .187 as testified by Trooper Adams.
The record, however, clearly establishes that after defendant was initially stopped for speeding and apprehended, a strong odor of alcohol was detected on his breath. In addition, he failed field sobriety tests. Regardless of the reading registered on the breathalyzer machine, there was ample evidence to support the jury's determination that he was intoxicated. The jury was not obligated to accept as true defendant's self-serving testimony or that of his girlfriend. The jurors were entitled to accept the testimony of Trooper Adams that defendant was intoxicated when arrested.
Defendant does not contest the adequacy of the record to support a DWI-second offense conviction. We have found that there is no impediment to using defendant's February 27, 1995 conviction as a predicate offense. Defendant pled guilty to that offense and a record of the plea colloquy establishes that defendant's constitutional rights were adequately protected.
There is no merit to this assignment of error.
POST VERDICT JUDGMENT OF ACQUITTAL
In this assignment of error, defendant contends the trial judge erred in not granting his motion for a post verdict judgment of acquittal. In his motion, defendant contested the sufficiency of the evidence to support his conviction. More specifically, he claimed that the state failed to prove that he was the same individual convicted of the predicate offense of driving while intoxicated on October 17, 1994. Inasmuch as we have refused to permit the October 17, 1994 conviction to be used as a predicate offense, this assignment of error is moot.
CONCLUSION
For the reasons assigned, the defendant's conviction for fourth offense DWI is reversed and his sentence is vacated. The judgment of guilty of fourth offense DWI is hereby modified and a judgment of conviction of second offense DWI is rendered. We remand the case to the trial judge for sentencing on the modified judgment of conviction.
CONVICTION REVERSED AND MODIFIED; SENTENCE VACATED; AND REMANDED FOR RESENTENCING.
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