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State v. Harper12/14/2005
probation for four years. The court imposed several special conditions, including participation in an in-house substance abuse program and follow-up treatment; one year of home incarceration, subject to electronic monitoring, curfew restrictions, and monthly home visitations; and installation, at his own expense, of an ignition interlock device on his car if he wished to drive. The defendant was also ordered to pay a fine of $5,000 and court costs as conditions of probation.
The defendant appeals, asserting that the evidence was insufficient to sustain his conviction for DWI, Fourth Offense.
LAW
The standard of review for a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979).
La. 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 . . . when:
(a) The operator is under the influence of alcoholic beverages . . . .
To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while intoxicated. State v. Courtney, 30,629 (La. App. 2d Cir. 5/13/98), 714 So. 2d 176. It is not necessary that a conviction of DWI be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Volgamore, 38,054 (La. App. 2d Cir. 1/28/04), 865 So. 2d 237, writ denied, 2004-1255 (La. 4/22/05), 899 So. 2d 568.
DISCUSSION
The defendant does not contest his three prior DWI convictions. He argues only that the circumstantial evidence presented was not sufficient to prove intoxication. We disagree.
The testimony of the two experienced police officers demonstrated that the defendant's demeanor and behavior were that of a highly intoxicated person. The defendant smelled strongly of alcohol and had bloodshot eyes. There was alcohol spilled on the floorboard of his vehicle. A spilled can of beer was found in an ice chest in the front seat. When initially stopped by Deputy McCullough, he stumbled from his vehicle, swayed while standing, and fumbled through his wallet. When asked where his place of employment was located, he was so disoriented that he was unable to point in the right direction. He was verbally abusive to both officers.
The defendant's score on the HGN test indicated that he was intoxicated. While the defendant argues that the test was invalid because Deputy Smalley spent 45 seconds instead of 30 seconds per eye, the record contains no evidence indicating that this compromised the test result.
This assignment of error lacks merit.
CONCLUSION
The defendant's conviction and sentence are affirmed.
AFFIRMED.
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