Allen v. State4/2/2002
ant's brakes could cause appellant's vehicle to pull to the left. The State called witnesses to refute Mr. Johnson's testimony regarding the condition of appellant's brakes and its resulting implications.
[ ] On December 16, 1999, a jury entered separate "guilty" findings on each count pursuant to both statutory subsections.
DISCUSSION
MOTION TO SUPPRESS
[ ] Appellant first argues that the district court should have suppressed his April 14, 1999, blood sample, including the resulting blood-alcohol concentration, because Officer Schell did not comply with the implied consent statute prior to procuring the sample. According to appellant, Officer Schell was required to follow implied consent procedures because at the time the blood was drawn, appellant was "charged" with driving while under the influence, appellant was not dead, unconscious or otherwise incapable of refusal, and serious bodily injury or death had not resulted from the collision. Even if serious bodily injury had resulted, appellant asserts that Officer Schell did not comply with Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2001), and generally states that the circumstances of this case did not justify a warrantless seizure of appellant's blood pursuant to the Fourth Amendment to the United States Constitution, Van Order v. State, 600 P.2d 1056 (Wyo. 1979), or Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).
[ ] On September 10, 1999, appellant's defense counsel filed a motion to suppress the April 14, 1999, blood sample. The district court held an evidentiary hearing *fn2 on the motion on November 10, 1999. At the hearing, Officer Schell, a Wyoming Highway Patrol officer for nearly four years, testified that on April 14, 1999, he responded to the scene of the collision at 2:53 p.m. Based on the evidence at the scene, it appeared to Officer Schell that appellant's station wagon was traveling eastbound on Wyoming Boulevard and began to turn left "prior to the actual intersection where you would normally turn into that lane of travel." The station wagon was turning across the westbound lane of Wyoming Boulevard and if the vehicle had completed the turn, it would have turned into the southbound lane of McKinley Street, "which is the opposite lane from which he should have ended up." At some point, the station wagon collided with the Finks' Ford Tempo, which was traveling westbound on Wyoming Boulevard. Mary Fink was driving the Ford Tempo, and her husband, Albert Fink, was a passenger in the vehicle. It appeared that the Ford Tempo was the only vehicle to exhibit braking "behavior" immediately prior to the collision, and according to Officer Schell, there was no reason, "in terms of the vehicles' ability to see," regarding why the collision occurred. Based on Officer Schell's training and experience, intoxicated drivers commonly fail to perceive speed, distance, and other objects.
[ ] Upon arriving at the scene, medical and fire personnel pointed out appellant as the driver of the station wagon. Officer Schell spoke with appellant, who indicated tha t he was driving the station wagon. Witnesses at the scene also informed Officer Schell that they saw an individual matching appellant's description run from the driver's side of the station wagon to the Ford Tempo, and that appellant stated, "I'm sorry; I'm sorry; I did not see them." Heather Johnson, a passenger in the station wagon, stated appellant was driving the vehicle, that it had been traveling eastbound, and that it had drifted across the centerline numerous times prior to the collision. Medical personnel who interacted with appellant at the scene stated that appellant was "definitely intoxicated." Officer Schell observed a "stro
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