Opinion
Case No. 98-3159-DES
June 26, 2000
Michael S. Holland, Russell, KS, for petitioner.
Jared S. Maag, Office of Attorney General, Topeka, KS, for respondents.
MEMORANDUM AND ORDER
This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner argues there is insufficient evidence to support his conviction of driving under the influence of alcohol in violation of Overland Park Municipal Code 12.04.030(A)(2). The court finds an evidentiary hearing is not necessary. Both parties have submitted briefs in this matter and the court is ready to rule.
I. FACTUAL BACKGROUND
On August 11, 1995, at 2:48 a.m., officer Bill Anderson of the Overland Park Police Department was monitoring the speed of vehicles traveling west bound on I-35 in Overland Park. The officer used the Falcon radar to determine that petitioner was driving 65 miles per hour in a 55 mile per hour zone. The officer pulled out behind the vehicle, which moved from the center to the left lane without signaling. After following petitioner for several blocks, the officer observed the vehicle straddle the white divider line on the highway, eventually the tires crossed over the line. The officer watched as the vehicle straddled the lanes for approximately five blocks, at which time the officer activated his emergency lights. After activating his lights, the officer observed the vehicle pull all the way over to the right lane without using the turn signal, and drive half-way up an exit ramp before coming to a stop. The officer estimated that the vehicle traveled seven blocks before coming to a stop.
Upon contacting petitioner, the officer smelled a moderate odor of alcohol on petitioner's breath and observed that petitioner had bloodshot eyes, flushed face, and slurred speech. Petitioner had to look through his wallet in three different places before finding his driver's license. When the officer asked petitioner to step out of the vehicle, petitioner exited the vehicle and bumped into the driver's side door twice. The officer then performed a comprehensive series of field dexterity tests.
The officer placed petitioner under arrest for driving under the influence of alcohol and read petitioner the Miranda warnings. Petitioner was transported to the Overland Park police station, where he was given a copy of the Implied Consent Advisory and agreed to take the breath test. After the officer checked petitioner's mouth for injuries and blood, they waited during a twenty minute observation period. Petitioner's breath was tested on an Intoxilyzer 5000 machine belonging to the Overland Park police department. The test was administered at 4:01 a.m. and showed petitioner's blood alcohol content to be .083. The legal limit for a person's blood alcohol content in Kansas is .08.
On February 26, 1996, petitioner was convicted by a jury of speeding, failing to signal movement, and driving under the influence of alcohol. On February 20, 1998, petitioner's conviction was affirmed by the Kansas Court of Appeals in an unpublished opinion. City of Overland Park v. Lamer, No. 76,625 (Kan.App., Feb. 20, 1998). The Kansas Supreme Court denied petitioner's appeal for review on April 28, 1998. On May 18, 1998, petitioner initiated this action claiming that his conviction should be overturned on the ground that there is insufficient evidence to support his conviction.
II. DISCUSSION
A petitioner is entitled to federal habeas corpus relief on claims adjudicated on the merits in a state court proceeding only if he establishes that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2).
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court held a federal court may grant habeas relief only if it determines that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. There is a presumption that "the trier of fact resolved any such conflicts in favor of the prosecution, and [the court] must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992). The federal court does not weigh the evidence, and "must accept the jury's resolution of the evidence as long as it is within the bounds of reason." Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993). After review of the record, the court finds that the state court's decision is not contrary to the Jackson v. Virginia "rational trier of fact" standard or an unreasonable determination of the facts in light of the evidence.
First, petitioner claims that the evidence presented at trial did not establish that he was guilty of driving under the influence of alcohol because the evidence did not establish that his blood alcohol level was .08 or more while he was driving. According to the instructions given to the jury, the city was required to prove, beyond a reasonable doubt, the following elements:
1. That the defendant drove a vehicle;
2. That the defendant, while driving, had an alcohol concentration in his breath of .08 or more as measured within two hours of the time of operating his vehicle; and
3. That the act occurred on or about the 11th day of August, 1995, in the City of Overland Park, Kansas.
Petitioner took a breath test one hour and thirteen minutes after he was stopped by the police. At that time, petitioner's blood alcohol level was .083, above the legal limit.
The statute in question makes it illegal to drive a vehicle while having a blood alcohol level of .08 or higher as measured within two hours of the time of operating the vehicle. Petitioner reads this statute as requiring the government to prove his blood alcohol level at the time he was actually driving. Petitioner argues his blood alcohol level one hour and thirteen minutes later is insufficient. The court disagrees. A plain reading of the statute clearly shows that the petitioner's argument is without merit.
The statute states that it is illegal to drive a vehicle with a blood alcohol level of .08 or higher as measured within two hours of operating the vehicle. Petitioner goes to great length to stress the fact that the statute prohibits operating a vehicle with a blood alcohol level of .08 or greater while driving. However, he seemingly ignores the fact that the statute authorized the blood alcohol level to be measured at any time within two hours of operating the vehicle. Although the court agrees that a test conducted one hour after the petitioner was stopped does not establish what his blood alcohol level was at the actual time he was driving, it does provide sufficient proof to find the petitioner guilty of the offense charged, because the statute specifically states the blood alcohol level can be measured within two hours of driving.
Petitioner also claims the evidence presented at trial was insufficient to prove guilt beyond a reasonable doubt because his expert testified that the intoxilyzer has a margin of error of plus or minus .01. The City of Overland Park did not offer any evidence to contradict the expert testimony, and the officer who testified agreed that all machines have a margin of error. Petitioner's argument ignores the fact that weight and credibility of evidence are issues within the province of the jury. United States v. Gomez, 807 F.2d 1523, 1527 (10th Cir. 1986). The jury weighed the evidence and found petitioner guilty. The jury's resolution of the evidence is within the bounds of reason. Kelly, 998 F.2d at 808.
III. CONCLUSION
The court finds that the petitioner is not entitled to any relief. The state court's decision is not contrary to the Jackson v. Virginia "rational trier of fact" standard or an unreasonable determination of the facts in light of the evidence. The evidence presented at trial was sufficient to find the petitioner guilty of the crime charged.
IT IS THEREFORE BY THIS COURT ORDERED that the petition for writ of habeas corpus is denied.