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State v. Wessel5/25/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of St. Charles County, Hon. Grace M. Nichols
Citation:
Opinion Vote: REVERSED AND REMANDED. Crahan and Teitelman, JJ., concur.
Opinion:
Todd Wade Wessel (Defendant) appeals from the judgment entered following his jury conviction for driving while intoxicated in violation of section 577.010, RSMo 1994. We reverse and remand for a new trial.
On April 19, 1996, Officer Larry Byndom of the Missouri State Highway Patrol was traveling westbound on Interstate 70 in St. Charles County in the far right lane when he noticed another vehicle pass his marked patrol car while traveling at a high rate of speed. Officer Byndom estimated the vehicle's speed at about 80 miles per hour and he pulled the vehicle over. Defendant was the driver of the vehicle. When Officer Byndom approached Defendant, he could smell a strong odor of intoxicating beverage coming out of the vehicle and Defendant. As Defendant exited his car, he had to grab on the side of it to maintain his balance to come to the rear of the vehicle. Defendant was swaying and his eyes were watery and bloodshot.
Officer Byndom asked Defendant to recite the alphabet, which he did. Defendant was unable to complete the one-leg stand test, which required him to stand on one leg with his arms to his side for about 30 seconds. Defendant used his arms to maintain his balance and put his foot down constantly. Officer Byndom also performed the gaze nystagmus test on Defendant. The results of this test indicted to Officer Byndom that Defendant was intoxicated.
At this time, Officer Byndom placed Defendant under arrest for speeding and driving while intoxicated. He read Defendant his Miranda rights and then transported him to the St. Charles County Sheriff's Department to give him a breathalyzer test. Upon arriving at the Sheriff's Department, Officer Byndom advised Defendant of the Missouri Implied Consent Law and asked him to submit to a breathalyzer test. Defendant then requested to talk to an attorney. Officer Byndom gave him twenty minutes to contact his attorney. After twenty minutes, Officer Byndom again asked Defendant to take the breath test, but he again refused until he spoke with his attorney.
The State charged Defendant with driving while intoxicated and a trial was held on December 15, 1997. Following trial, the jury convicted Defendant and the court sentenced him to four years of imprisonment. Defendant now appeals.
In his single point on appeal, Defendant contends the trial court erroneously admitted testimony from Officer Byndom and allowed improper closing argument by the State which violated his right to silence, right to counsel and to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 19 of the Missouri Constitution.
Defendant complains about the following testimony in the State's direct examination of Officer Byndom:
Q. Did you read him his Miranda rights?
A. Yes, Mr. Wilson (sic) was given his Miranda rights then taken into custody.
Q. What did you tell him [about the Missouri Implied Consent Law]?
A. If you refuse to take the test, your driver's license shall immediately be revoked for one year. Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?
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