State v. Gittemeier
2013 Mo. App. LEXIS 576
| Mo. Ct. App. | 2013Background
- Gittemeier appeals a judgment convicting him of driving while intoxicated (DWI) and trespass in the first degree, as a prior/persistent offender and chronic DWI offender.
- At about 5:45 a.m. on July 31, 2010, neighbor Preis observed Gittemeier on an ATV on Preis’s lawn with what appeared to be vodka and he was asked to leave.
- Preis restrained Gittemeier after an attempt to do donuts; Gittemeier smelled of alcohol, was incoherent, slurred, rambled, and dozed off.
- Deputy Hey encountered Gittemeier around 6:45 a.m.; Gittemeier admitted to drinking a few drinks, failed standardized field sobriety tests, and was arrested at 7:40 a.m.
- Blood tests at 11:36 a.m. and 12:06 p.m. yielded BACs of 0.170% and 0.167%, respectively.
- The jury found Gittemeier guilty on both counts and the court sentenced him as a chronic DWI offender to 15 years and 90 days for trespass.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of intoxication evidence | Gittemeier argues insufficient evidence of intoxication at the time of ATV operation. | Gittemeier contends timing or credibility issues undermine proof of intoxication. | Sufficient evidence supports intoxication at the time of operation. |
| Public-road driving and motor-vehicle definition | Gittemeier drove on a public-access, open-to-public street; thus DWI applies. | ATV was driven only on privately maintained roads/private property. | Driving on a road open to the public satisfies DWI; jury question on public-road driving was proper. |
| Motion in limine and expert testimony | State would not be unfairly surprised; Citron testimony on field sobriety should be allowed. | State did not preserve argument; offer of proof lacking; plain error review. | No preservation; trial court did not plainly err by excluding Citron on field sobriety; point denied. |
Key Cases Cited
- State v. Gibbs, 306 S.W.3d 178 (Mo.App. E.D. 2010) (sufficiency review; view evidence in light favorable to verdict)
- State v. Knifong, 53 S.W.3d 188 (Mo.App. W.D. 2001) (intoxication may be shown by physical manifestations and field sobriety results)
- State v. Scholl, 114 S.W.3d 304 (Mo.App. E.D. 2003) (physical manifestations and odor support intoxication finding)
- Covert v. Fisher, 151 S.W.3d 70 (Mo.App. E.D. 2004) (open private streets to public for DWI purposes; highways/open to public travel)
- Laplante, 148 S.W.3d 347 (Mo.App. S.D. 2004) (driving on public street can render a motor vehicle under DWI statute)