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People v. Nowlin6/4/2002
Scott William Nowlin appeals his convictions for driving under the influence of alcohol and driving with a blood-alcohol level of .08 or more. He contends: (1) his blood-alcohol test result should have been suppressed; and (2) the prosecutor was guilty of prejudicial misconduct. We affirm.
Ervin and Stephanie Dubrul were traveling through an intersection in their car when they collided with Nowlin's vehicle. The Dubruls were injured, and Nowlin had a blood-alcohol level of .23. Nowlin was charged with felonies for causing bodily injury in an accident while driving under the influence of alcohol and driving with a blood-alcohol level of .08 or more. Because the jury was apparently unsure he caused the accident, it convicted him of the lesser, necessarily included offenses.
I.
Nowlin contends his blood-alcohol test result should have been suppressed. The trial court properly denied his suppression motion, which was made on the grounds he was not given his choice of tests and the method used shocked the conscience.
After Nowlin was arrested and taken to the police station, he was given the option of taking a blood, breath, or urine test to determine his blood-alcohol level. He chose urine and gave one sample but was unable to complete the test by giving a second.
Nowlin was told he must submit to a blood test. He was not offered a breath test because the police department's policy is to take a blood test in all felony drunk driving cases. Nowlin initially agreed, but on the way to the infirmary, he said he was no longer willing to take the test. He related he had already done the urine test and did not want to provide anything else.
When Nowlin turned around and started walking away, two officers grabbed his wrists and escorted him to "the safety chair." They tried to put him in the chair, but he struggled. A third officer was needed to help lift Nowlin and put him in the chair.
Nowlin's arms were handcuffed on the sides of the chair, his legs were placed in restraints, and his waist and chest were restrained by belts. Despite urging by the officers to calm down, Nowlin struggled constantly. The nurse was initially unable to obtain a blood sample.
An officer grabbed Nowlin's head and jaw from behind and turned it away so Nowlin could not see the nurse with the needle and so he could not spit on her. Nowlin complained of pain, and perhaps because Nowlin had told the officer his neck had been fused, the officer released him.
As the nurse continued her attempt to draw blood, Nowlin turned his arm in to deny access to a vein. An officer bent Nowlin's fingers away from the palm to straighten his arm and keep it locked. When the fingers are bent back, it induces "pain control." He was held in that position for 30 seconds to one minute while the blood was drawn. Afterward, Nowlin was taken to a cell where he fell asleep.
When reviewing the denial of a motion to suppress evidence, we use this standard: "` he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.' . . . [ ] `The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.' [Citation.] Because `that issue is a question of law,' the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision th
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