Driving While Impaired

F 2011-1045

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In OCCA case No. F 2011-1045, Joshua Paul Nosak appealed his conviction for first-degree manslaughter, leaving the scene of a fatal accident, driving without a driver's license, and assault with a dangerous weapon. In an unpublished decision, the court decided to affirm his convictions but ordered that the case be sent back to fix a mistake in the sentencing. One judge disagreed with the decision. Nosak was found guilty of serious crimes after a jury trial. The jury decided he was guilty of first-degree manslaughter for driving while impaired and also found him guilty of leaving the scene of an accident after someone died. He was sentenced to a total of 50 years in prison for the manslaughter charge and received additional time and fines for the other offenses. Nosak's appeal raised several arguments. First, he believed that the court should not have allowed a specific charge against him because the underlying misdemeanor wasn't strong enough to support the manslaughter charge. However, the court found that this didn't really hurt his case because the jury found him guilty on other grounds. Second, Nosak argued that the court allowed bad evidence to be presented, which shouldn't have been allowed. The court found that he didn't object to this during the trial, so they couldn’t rule on it unless it was obviously wrong and affected his rights, which they determined it did not. Third, he claimed that he didn’t get good help from his lawyer. However, the court said that because the evidence against him was very strong, he could not show that he was harmed by any mistakes made by his attorney. The fourth point was about correcting mistakes in the court's decision regarding his punishment. The court accepted that there were errors in the sentencing order and decided to send the case back to fix them. Finally, Nosak argued that the many errors combined made it impossible for him to have a fair trial. But the court found that there were no individual mistakes that were serious enough to change the trial's outcome. In conclusion, the decision meant that while Nosak's convictions were upheld, the court would correct the sentencing mistakes before finalizing the case. One judge disagreed with this conclusion, but the others agreed with the majority opinion.

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M-2009-1146

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In OCCA case No. M-2009-1146, Ronald Dean Gallaway appealed his conviction for Driving while Impaired (Count 1). In an unpublished decision, the court decided to affirm the conviction but reversed the sentence and ordered a remand for resentencing. One judge dissented. Gallaway was tried in Texas County for two offenses: Driving while Impaired and Speeding. The jury found him guilty of the lesser offense of Driving while Impaired and decided on a sentence of six months in jail and a $500 fine for that charge, plus a $200 fine for speeding. Gallaway's appeal focused on two main issues. First, he argued that the breath test results should not have been allowed in the trial because the proper procedures for administering the tests were not followed. However, the court found that even if this was an error, it was harmless because the evidence from the trial was still strong enough to support the conviction for Driving while Impaired. The jury chose not to convict Gallaway for the more serious charge of Driving under the Influence, which would have required reliance on the breath test results. Second, Gallaway claimed that his sentence was incorrect because the court did not follow the rules regarding alcohol assessments. The law requires that an alcohol and drug assessment be done before sentencing and that the recommendations from this assessment be included as part of the sentence. The court found that while an assessment was done, the judge did not include all of the recommended conditions in the sentence. As a result, the court decided to reverse the sentence and send the case back for resentencing in accordance with the law. Gallaway was given the opportunity to request an order to suspend part of his sentence during this new hearing.

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F-2007-1133

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In OCCA case No. F-2007-1133, Jona Ann Montgomery appealed her conviction for Second Degree Murder and Leaving the Scene of a Fatality Accident. In an unpublished decision, the court decided to reverse the conviction for Second Degree Murder and affirmed the conviction for Leaving the Scene of a Fatality Accident. One judge dissented. Jona Ann Montgomery was tried in Pittsburg County for her involvement in a tragic incident where she hit two children with her car while speeding near a crowded football game. The younger child, a ten-year-old girl, unfortunately died, while her brother survived. After the accident, Montgomery left the scene but left behind her belongings in the car. The main issue in Montgomery's appeal was the trial court's refusal to instruct the jury on the possibility of a lesser charge known as Misdemeanor Manslaughter. Initially, the law at the time of Montgomery's trial did not permit this instruction, and her attorney argued against it. However, shortly after the trial, a higher court changed its stance on this law, ruling that driving while impaired could indeed be used for a Misdemeanor Manslaughter charge. Montgomery argued that she should receive a new trial based on this new rule. The court reviewed the situation and agreed that the trial court had made a mistake by not allowing the jury to consider this lesser charge. They believed that a fair jury could have potentially found Montgomery guilty of Misdemeanor Manslaughter instead of Second Degree Murder, given the circumstances of the case. Montgomery also raised concerns about other evidence that was presented during her trial. This included items found in her vehicle that were linked to drug use and remarks made during the trial suggesting she showed no remorse for her actions. The court found that much of this evidence was not necessary and could unfairly bias the jury against Montgomery. The decision ultimately led to the reversal of her conviction for Second Degree Murder because of the instructional error on Misdemeanor Manslaughter, while they upheld the conviction for Leaving the Scene of a Fatality Accident. The judges aimed to ensure that future trials would avoid the errors found in Montgomery's case.

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F-2005-700

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In OCCA case No. F-2005-700, Harry Oliver West appealed his conviction for Driving While Under the Influence of Alcohol and Driving While License is Canceled/Suspended/Revoked. In a published decision, the court decided to reverse the conviction and send the case back for a new trial. One judge dissented. West was found guilty by a jury, which decided that he should serve a total of 45 years in prison for the first offense and 1 year for the second offense, with some fines included as well. However, during the trial, the jury was not given proper instructions about what driving under the influence and driving while impaired mean. Even though West did not ask for these instructions, the court agreed that this was a significant mistake that affected the case. Due to this error, the court found that West deserved another chance to have his case heard, which means a new trial will take place. As a result, the decisions made in the trial are reversed, and the case gets remanded, which means it goes back to the lower court for a fresh start.

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M-2004-66

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In OCCA case No. M-2004-66, Foy Anthony Boyd appealed his conviction for Driving While Impaired (DWI). In a published decision, the court decided to reverse Boyd’s judgment and sentence and remand for a new trial. One judge dissented. Boyd was convicted in the District Court of Coal County after a jury trial. He was sentenced to pay court costs and a fine because he was found guilty of DWI. Boyd argued that he should not have been convicted because he believed the results of his breath test should not have been used as evidence. He claimed that the rules about how the breath test should be given were not followed, so the results were not valid. The state, which was against Boyd in the case, argued that they did not make a mistake and that there was enough evidence to convict him without the breath test results. However, the court pointed out that it was the responsibility of the state to prove that all rules were followed when giving the breath test. The state did not show what the relevant rules were or that the officers followed them properly. Boyd presented evidence showing that the breath test was not conducted according to the rules that the Board had in place. The state just had officers say they believed the rules were followed without providing the actual rules or clearing up the concerns about them. The court decided that this was a significant error. Even though officers testified that Boyd showed signs of being impaired before the breath test was done, the court concluded that the use of the test in the trial was a violation of Boyd's rights. Since the state didn't prove that the breath test was done correctly, the court believed Boyd deserved a new trial. Boyd asked for his conviction to be completely dismissed. However, the court felt that it was fairer to allow the state to have another chance to present the case with proper evidence. If the state could show that the breath test was given correctly in the retrial, they could use those results against Boyd. The court ordered that Boyd's conviction be overturned and that the case be sent back for a new trial where the state could fix the issues with the evidence. In the dissenting opinion, the judge believed that the evidence supporting Boyd’s conviction was strong enough even without the breath test. This judge pointed out that the officers had seen signs of intoxication in Boyd, like the smell of alcohol, his bloodshot eyes, and his poor performance on sobriety tests. The judge argued that Boyd's guilty verdict should stand since traditional signs of impairment by officers could be enough for a conviction.

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M-2002-1195

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In OCCA case No. M-2002-1195, Anita Shank appealed her conviction for Driving Under the Influence, Transporting an Open Container of Beer, and Obstructing an Officer. In a published decision, the court decided to affirm her convictions for Transporting an Open Container and Obstructing an Officer, but modified her Driving Under the Influence conviction to Driving While Impaired and remanded the case for sentence modification. One judge dissented. Anita Shank was found guilty of driving under the influence of alcohol, transporting open containers of beer, and obstructing an officer during her trial. She received a 90-day sentence for driving under the influence and fines for the other two charges. Shank contested her convictions on several grounds, claiming the evidence was insufficient and arguing errors regarding jury instructions and sentencing. During the trial, it was noted that Shank was stopped by a sheriff's deputy while she was driving and had an open container of beer in her car. The deputy observed signs of intoxication, like bloodshot eyes. Shank admitted to drinking two beers but refused to take a breathalyzer test. When questioned about the whereabouts of her child, she lied and was uncooperative. The court found that there was enough evidence to support her conviction for driving under the influence but acknowledged that the jury should have been instructed on the possibility of a lesser offense—Driving While Impaired. The state agreed that not instructing on this was an error, although they deemed it harmless. Additionally, Shank argued the trial court should have considered a suspended sentence for her. The record did not show that the court completely ignored this request, but the judge did express a need for proof of her willingness to enter treatment for alcohol issues. After the appeal, it was revealed that Shank completed the treatment program, prompting the court to order the lower court to consider this when evaluating her suspended sentence request. The court upheld the obstruction conviction, stating that her deliberate lies and refusal to cooperate with the deputy interfered with the execution of his duties, which constitutes sufficient grounds for the charge. In conclusion, while Shank's obstruction of an officer and open container convictions were affirmed, her DUI was modified to a lesser charge of DWI, and the court directed the district court to revisit her request for a suspended sentence.

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F 2002-1265

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In OCCA case No. F 2002-1265, Rian Wayne Ockerman appealed his conviction for First Degree Manslaughter and Leaving the Scene of an Accident Involving Death. In an unpublished decision, the court decided to reverse the conviction for First Degree Manslaughter and remand with instructions to dismiss that charge, while affirming the conviction for Leaving the Scene of an Accident. One judge dissented.

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F-2001-1243

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In OCCA case No. F-2001-1243, Michael Gerald Turner appealed his conviction for multiple crimes. In a published decision, the court decided to affirm some of Turner's convictions and dismiss others. Specifically, the court upheld his convictions for Assault and Battery Upon a Police Officer, Unauthorized Use of a Vehicle, Possession of a Controlled Substance, Driving While Impaired, and Attempted Escape, but reversed and dismissed his convictions for Personal Injury DUI and DUI due to issues with evidence and double jeopardy. One member of the court dissented.

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F-2001-785

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In OCCA case No. F-2001-785, Sammy Dewain Haas appealed his conviction for Operating a Motor Vehicle While Under the Influence of Alcohol and Driving Under Suspension. In a published decision, the court decided to affirm his conviction. One judge dissented. Sammy Dewain Haas faced serious charges for driving while drunk and for driving when his license was suspended. He went to trial in Beckham County, where a jury found him guilty. The punishment was set at ten years in prison and a $10,000 fine for the drunk driving charge, and one year and a $500 fine for the driving under suspension charge. The sentences were to be served at the same time. Haas raised several issues on appeal. First, he pointed out that the prosecutor wrongly argued that the jury should think about what he might do in the future instead of what he did this time. The court did not think this was a serious mistake that required a new trial. Second, he claimed that the jury should have been told about a lesser charge called Driving While Impaired, but the court found that the evidence did not support that. Haas also said the judge should have given instructions about using circumstantial evidence, which is when a conclusion is drawn based on the surrounding facts instead of direct evidence. While the court agreed that the instructions should have been given, they ruled that this mistake didn't affect the overall outcome of the trial. Finally, the court ordered that the official record be changed to correctly state that Haas's sentences were to run together, not one after the other. In the end, the court upheld the trial’s decision, meaning Haas would remain convicted and serve his sentence as planned.

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F-2000-618

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In OCCA case No. F-2000-618, Keith Avey appealed his conviction for Driving While Under the Influence, After Former Conviction of Driving Under the Influence. In an unpublished decision, the court decided to affirm Avey's judgment and sentence of eight years imprisonment and a $1,000 fine. However, the court requested a remand for a hearing on restitution. One judge dissented. Avey was found guilty by a jury which heard evidence that he was driving under the influence of alcohol. This included observations of his strong smell of alcohol, bloodshot eyes, slurred speech, and unstable walking after a collision. The jury decided to give him a punishment of eight years in prison and a fine, along with restitution payment. During the appeal, Avey argued that the trial court made mistakes. He believed the court should have informed the jury about a lesser charge called Driving While Impaired. However, the appellate court ruled that the evidence against him was strong enough that not giving this instruction was acceptable. Avey also contended that the trial court should have examined the specific losses experienced by the victims before setting the restitution amount. The appellate court agreed that the trial court failed to provide this hearing, stating that the law requires the court to establish the actual losses suffered by the victims. This is why they sent the case back for a restitution hearing. Avey argued that he did not get a fair defense because his attorney didn’t challenge the order of restitution effectively. However, the court disagreed, saying that the attorney did raise objections about the amount of loss and therefore did not provide ineffective assistance. Furthermore, Avey claimed that the evidence presented was not enough to prove he was guilty. The court found that there was sufficient evidence to support the conviction. Finally, Avey said that the eight-year sentence was too harsh. The appellate court stated that the sentence was appropriate and in line with the law. In summary, while the appellate court upheld Avey's imprisonment and fine, it required a new examination of the restitution amount due to the trial court's failure to provide proper hearings.

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