Lead Opinion
OPINION
Thе appellant, Lawrence Douglas Wood, was convicted of Operating a Motor Vehicle While Having a Blood or Breath Alcohol Concentration of .10 or More After a Prior Conviction in violation of 47 O.S. Supp.1982, § 11-902, in the District Court of Oklahoma Cоunty Case No. CRF-83-4582. The appellant, hereinafter referred to as defendant, was sentenced to five years imprisonment, and he appeals.
On September 3, 1983, Officer Sharon Ford of the Oklahoma City Police Department was on roxitine patrоl in the vicinity of N.W. 23rd and Classen. At approximately 7:30 p.m., Officer Ford observed the defendant execute a right turn without using his turn indicators, and stоpped the defendant. When the defendant exited his car, Officer Ford noticed that he was moving awkwardly, and that his speech was slurred. The defendant was arrested and a breathalyzer test was administered which reflected a breath alcohol concentration of fourteen-hundredths (.14).
In his first assignment of error, the defendant contends that the State failed to prove the crime, and therefore, the trial court erred in overruling defendant’s demurrer, or motion for a directed verdict.
The thrust of defendant’s contention is that 47 O.S.Supp.1982, § 11-902(A)(1) requires the State to show that the breathalyzer administered actually tested alcohol cоncentration per two hundred ten (210) liters of breath. The defendant claims that the State is required to demonstrate at trial the actual workings of the breathalyzer device. This contention is patently frivolous. The defendant fails to cite authority in suppоrt of this argument; thus, this Court will not consider his contention. Ward v. State,
Defendant’s second assignment of error is that the trial court improperly limited сounsel’s right to cross-examine the officer administering the breathalyzer test as to his ability to identify the defendant. The general rule in Oklahoma is that the scope of cross-examination rests within the sound discretion of the trial court. Jackson v. City of Oklahoma,
Finally, defendant contends that 47 O.S.Supp.1982, § 11-902(A)(1) is unconstitutional and void for vagueness. This Court has previously held that the 1961 and 1971 enactments of 47 O.S.Supp.1982,
For the above and foregoing reasons the judgment and sentence is AFFIRMED.
Dissenting Opinion
dissenting:
I must respectfully dissеnt regarding the majority’s treatment of appellant’s first assignment of error. The Oklahoma Legislature has set forth several requirеd procedures for the efficacy of operation of the breathalyzer apparatus and the reliability of the results therefrom. See 47 O.S.Supp. 1982, § 756(d)(e). Furthermore, the Oklahoma Legislature has delegated the responsibility of “approv[ing] satisfaсtory methods, procedures, techniques, devices, equipment and records for tests and analysis ... for the purposes of determining the alcohol concentration ... and concentration of any other intoxicating substance” to the Board of Tests for Alcohol and Drug Influence. 47 O.S.Supp.1982, § 759(c). This Court has also held that the failure to comply with all the rules and procedures promulgated by that Board, on any given test, invalidates the test in question. Westerman v. State,
In the instant case, the appellant contends that the State did not prove an element of the crime since there was no evidence presented that the breathalyzеr was actually reading grams of alcohol per two hundred ten (210) liters of air. The appellant’s contention has merit. This Court hаs previously stated that breathalyzers are considered reliable machines for the measurement of levels of intoxiсation. Edwards v. State,
The State suggests that the prosecution has fulfilled its burden of proof since calibration of the apparatus is not a requisite element of the offense. This assertion is erroneous since the language of the statute requires proof of “breath alcohоl concentration, as defined in Section 756 of this title of ten-hundreths (0.10) or more ...” 47 O.S.Supp.1982, § 11-902(A)(1) (emphasis added). Section 756 defines alcohol concentration as “grams of alcohol per two hundred ten (210) liters of breath ...” 47 O.S. Supp.1982, § 756(d). The trial court similarly instructed the jury that a requisite element оf the offense is proof of “blood or breath alcohol concentration of .10 of more.” The jury was further charged that “[ajlcohol concentration shall- mean grams of alcohol per 100 milliliters of blood if the blood was tested, or grams of alcohol per 210 liters of breath if the breath was tested.”
No evidence was presented to demonstrate that the mаchine was in fact measuring alcohol concentration in grams per two hundred ten liters of breath. Moreover, the prоsecutor, in his closing argument, admitted:
It was pointed out that you have to prove — the State has to prove the blood оr breath alcohol concentration of .10, and pointed out that when breath is tested that grams of alcohol per 210 litеrs of breath. And counsel pointedly pointed out no word of that every [sic] came out on the witness stand. Not once did any of those witnesses testify in terms of*710 alcohol per 210 liters. (Emphasis added).
For this reason, the Stаte has failed its burden of proof, since it neglected to present evidence of a material element of the offense. The trial court should have sustained the appellant’s motion for a directed verdict. Therefore, I respectfully dissent.