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Wheaton v. State5/1/2003
tivity is so provocative that the resistance by the Defendant was understandable.
[ ] The district court gave the following instruction:
You are instructed that there may be situations that police activities are so provocative and resistance so understandable that it can only be concluded that the police were not engaged in the lawful performance of their official duties and that such conduct by the officer may give rise to right of self defense, i.e., a right to resist the use of excessive force.
[ ] The instruction given by the district court is an improvement upon the instruction offered by Wheaton and adequately conveyed to the jury his theory of the case. Best v. State, 736 P.2d 739, 745 (Wyo. 1987); Roberts v. State, 711 P.2d 1131, 1133-36 (Wyo. 1985). The district court did not abuse its discretion in declining to give the instruction offered by Wheaton, in favor of the instruction that it did give.
CONCLUSION
[ ] The prosecutor did not engage in misconduct in offering Wheaton's blood alcohol test as evidence, and it was not plain error for the district court to allow its admission. The blood test performed by the State on Wheaton was not inherently an unreasonable search and seizure and, thus, did not violate Wheaton's constitutional rights. Officer Rose had probable cause to arrest Wheaton for DWUI. The instructions given by the district court were adequate. The judgment and sentence of the district court are affirmed.
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