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State v. Ford6/1/2004
PUBLISHED
On 6 May 2002, defendant was present in Henderson County Criminal District Court for her trial on a driving while impaired charge. The court bailiff was informed by the clerk that defendant had an odor of alcohol about her. The bailiff walked by defendant while she was standing in the courtroom and smelled the odor of alcohol. The bailiff was within two feet of defendant, but did not speak to her. Defendant was unstable on her feet when trying to stand up straight, and was weaving back and forth. The bailiff then notified the Assistant District Attorney, and the Henderson County District Court Judge, the Honorable Randy Pool.
After receiving the information as to defendant's supposed condition, the judge called defendant around to make an inquiry of her. He asked defendant if she had been drinking, which she first denied. The judge informed her that it had come to his attention that she had the odor of alcohol about her, to which she admitted having had a drink during lunch. After this admission, the judge asked that she submit to an alco-sensor test. The judge later testified that he observed defendant's face to be redder the day of the summary contempt hearing in his courtroom, than it did at her de novo hearing before the superior court. He further testified that "I didn't think she was staggering, certainly not; but I thought that she was a little uneasy maybe on her feet, or unsteady maybe slightly on her feet."
Officer John M. Johnson, a K-9 patrol officer with the Henderson County Sheriff's Office, administered an alco-sensor test using the sensor he kept in his car. Defendant registered approximately .08 on the alco-sensor, and Officer Johnson reported this to the judge.
The judge reported the results of the test to defendant, telling her that she was legally impaired. Based upon this, and the odor from her breath, he held her in contempt of court because she had willfully reached the legal level of intoxication before coming to court on her driving while impaired charge. The judge testified that he did not believe he could try defendant in her condition as her competency to stand trial was in question, and she would have been of questionable assistance to her attorney. This caused the judge to stop his proceedings and deal with the situation. He testified his proceeding was delayed 15 minutes by defendant's impairment. The judge further testified that he entered an oral order holding defendant in contempt of court and that defendant was represented by counsel. An order and commitment on the contempt charge was signed that day, 6 May 2002, by the judge. The judge ordered defendant to serve 24 hours in jail and to turn in her driver's license and not operate a motor vehicle until disposition of her charge of driving while impaired.
In between the contempt order of 6 May 2002, and the de novo superior court hearing before Judge Guice, defendant told her probation officer, Donna Cannon, that on 6 May 2002 defendant had two glasses of wine before going to court. Defendant believed it did not matter as she was not driving.
After the de novo superior court hearing on the contempt charge, Judge Guice found that defendant was in direct criminal contempt of the District Court of Henderson County on 6 May 2002. Judge Guice adopted the same punishment as ordered by the district court judge, ordering defendant be discharged from any further obligation to the court.
On appeal, defendant raises six issues alleging reversible error: (I) that the district court and superior court did not sufficiently find that the facts upon which the judgment was based were established beyond a reasonable doubt; (II) & (III) that the
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