State Of Oklahoma v Jason L. Bandy

S 2007-1212

Filed: Aug. 6, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jason Bandy appealed his conviction for Negligent Homicide. Conviction and sentence were denied because the evidence from his blood test was not allowed to be used in the case. The State of Oklahoma could not show that this evidence was really important for their case. Judge N disagreed with the outcome.

Decision

We find that the State has not shown, and the record does not reflect, that review of this appeal is in the best interests of justice. The State's appeal in this matter is DENIED. This case is REMANDED to the trial court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of the Fourth Amendment in the taking of Jason Bandy's blood?
• Did the trial court err in suppressing the blood test evidence?
• Has the State demonstrated that the suppression of evidence would affect the prosecution of the case against Bandy for negligent homicide?
• Was the appellate review of the suppression order in the best interests of justice?

Findings

• the court erred in denying the State's appeal of the trial court's suppression of evidence
• the State failed to show that review of this appeal is in the best interests of justice
• the suppressed evidence does not form a substantial part of the proof of the State's case against Bandy

S 2007-1212

Aug. 6, 2008

State Of Oklahoma

Appellant

v

Jason L. Bandy

Appellee

OPINION

MICHAEL S. RICHIE LEWIS, JUDGE:

Jason Bandy was charged with Negligent Homicide in violation of 63 O.S.2001, § 4210.11 in the District Court of Delaware County, Case No. M-2006-869. Bandy filed a motion and brief asking that the evidence of the result of a blood test be suppressed. He alleged, generally, that the taking of his blood was in violation of the Fourth Amendment to the United States Constitution and was not done pursuant to statutory provisions providing for the taking of blood from persons suspected of operating vessels while under the influence of alcohol. The State filed a response brief in support of their position. The Honorable Alicia Littlefield, Special Judge, determined, in a written order that the results of the blood test should be suppressed, after reading the motions and briefs of the parties.

63 O.S.2001, § 4210.1 is part of the Oklahoma Boating Safety Regulation Act and deals with the death of any person as a proximate result of injury received by the operating of a vessel in reckless disregard of the safety of others. The State filed a notice of intent to appeal and now appeals to this Court pursuant to 22 O.S.Supp.2002, § 1053(5). Section 1053 provides, in part, that the State may appeal, upon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice. Priority shall be given to such an appeal, and the order staying the proceedings shall be entered pending the outcome of the appeal.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the State has not shown that appellate review of this case would be in the best interests of justice. We, therefore, deny the appeal of the trial court’s suppression of this evidence.

Here, the State has completely failed to show that the suppressed evidence forms a substantial part of the proof of their case against Bandy for negligent homicide as criminalized by 63 O.S.2001, § 4210.1.

DECISION

We find that the State has not shown, and the record does not reflect, that review of this appeal is in the best interests of justice. The State’s appeal in this matter is DENIED. This case is REMANDED to the trial court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS IN DISTRICT COURT

RICHARD L. HATHCOAT
12TH FLOOR
DELARE COUNTY
P.O. BOX 528
JAY, OK 74346

ATTORNEYS ON APPEAL

M. BRYCE LAIR
RICHARDS & CONNOR, PLLC
525 SOUTH MAIN STREET
TULSA, OK 74103

ATTORNEY FOR DEFENDANT
ATTORNEYS FOR APPELLANT STATE

M. BRYCE LAIR
RICHARD L. HATHCOAT
ASSISTANT DISTRICT ATTORNEY
DELAWARE COUNTY COURTHOUSE
P.O. BOX 528
JAY, OK 74346

ATTORNEY FOR STATE
ATTORNEY FOR APPELLEE

OPINION BY: LEWIS, J.

LUMPKIN, P.J.: Concur in Results

C. JOHNSON, V.P.J.: Concurs

CHAPEL, J.: Concurs

A. JOHNSON, J.: Concurs

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Footnotes:

1. 63 O.S.2001, § 4210.1 is part of the Oklahoma Boating Safety Regulation Act and deals with the death of any person as a proximate result of injury received by the operating of a vessel in reckless disregard of the safety of others.
2. 22 O.S.Supp.2002, § 1053(5).
3. State v. Sayerwinnie, 2007 OK CR 11, I 6, 157 P.3d 137, 139 (defining "best interests of justice' to mean that the evidence suppressed forms a substantial part of the proof of the pending charge, and the State's ability to prosecute the case is substantially impaired or restricted absent the suppressed or excluded evidence.)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 4210.1 - Negligent Homicide
• Okla. Stat. tit. 22 § 1053 - Appeals by the State

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:

• State v. Sayerwinnie, 2007 OK CR 11, I 6, 157 P.3d 137, 139