Steven Leroy Smith v The State Of Oklahoma

M 2004-0742

Filed: Jun. 7, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Steven Leroy Smith appealed his conviction for Driving While Under The Influence of Intoxicants and Failure to Wear a Seat Belt. His conviction and sentence included one year in jail with the first ten days to be served and a $20 fine. Judge Arlene Johnson dissented. The case began when Smith was pulled over for not wearing a seat belt. The officer said Smith wasn't driving badly, but he smelled like beer and had bloodshot eyes. Smith didn't take a field sobriety test or a breath test. He admitted to drinking three or more beers, but the officer didn't ask how long that took. The court found that the trial judge did not properly explain what "under the influence" means, which is important for this kind of case. Because of this mistake, the court decided to reverse Smith's conviction and told the lower court to dismiss the case.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, the case is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS SO ORDERED.

Issues

• Was there sufficient evidence to sustain Appellant's conviction for Driving Under The Influence?
• Did the trial judge properly define "under the influence" in accordance with legal standards?
• Was there a failure to perform a field sobriety test and consider the circumstances of Appellant's alcohol consumption?

Findings

• the court erred
• the evidence was not sufficient
• the conviction is reversed and remanded with instructions to dismiss

M 2004-0742

Jun. 7, 2005

Steven Leroy Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY ORDER

Following a bench trial before the Honorable Lowell Burgess, Jr., Associate District Judge, District Court of Pushmataha County, Appellant was found guilty in Case No. CM-2004-223, of Count 1 – Driving While Under The Influence Of Intoxicants and Count 2 – Failure To Wear Seat Belt. Appellant was sentenced July 7, 2004, to one year with all except the first ten days suspended on Count 1 and a $20.00 fine on Count 2. Appellant appeals from the Judgment and Sentence imposed.

On appeal, Appellant raised the following proposition of error: The evidence was insufficient to sustain Appellant’s conviction for Driving Under The Influence. Testimony reflects Appellant was stopped for not wearing a safety belt. The officer making the stop testified that he did not observe any type of erratic driving. However, Appellant had a strong odor of beer and bloodshot eyes. A field sobriety test was not performed and Appellant refused a breath test. The officer testified Appellant indicated he had drunk three or more beers, but the officer did not inquire over what period of time this beer was consumed.

In Slusher v. State, 1991 OK CR 83, ¶ 5, 814 P.2d 504, this Court held under the influence, when an element of the offense, must always be defined in the instructions, whether requested or not. Failure to do so is fundamental error. While the present case was a bench trial, the record clearly sets forth that the required definition of under the influence was not considered by the trial judge. This is evidenced by the following statement: I’m glad I looked at [the statute], because I thought my understanding of it was that it had to affect your driving. That’s not what the statute says. This pronouncement reveals an interpretation of the elements of this offense contrary to law.

IT IS THEREFORE THE ORDER OF THIS COURT, the case is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7th day of June 2005.

1 Condition in which alcohol has so far affected the nervous system, brain, or muscles of the driver as to hinder, to an appreciable degree, his ability to operate a motor vehicle in a manner that an ordinary prudent and cautious person, if in full possession of his faculties, using reasonable care, would operate or drive under like conditions. See OUJI-CR-6-35, Stanfield v. State, 1978 OK CR 34, ¶ 8, 576 P.2d 772.

CHARLES S. CHAPEL, Presiding Judge

GARY LUMPKIN, Vice Presiding Judge

CHARLES A. JOHNSON, Judge

ARLENE JOHNSON, Judge

ATTEST: Michael S. Ritchie, Clerk

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Footnotes:

1. See OUJI-CR-6-35, Stanfield V. State, 1978 OK CR 34, I 8, 576 P.2d 772.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Driving Under the Influence
• Okla. Stat. tit. 47 § 11-801(B)(1) (2011) - Driving Under the Influence
• Okla. Stat. tit. 47 § 12-402 (2011) - Failure to Wear Seat Belt
• Okla. Stat. tit. 22 § 3.15 (2005) - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Slusher v. State, 1991 OK CR 83, I 5, 814 P.2d 504
• Stanfield v. State, 1978 OK CR 34, I 8, 576 P.2d 772