Opinion
No. K 2389.
December 4, 1984.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, STATE OF LOUISIANA, HONORABLE RICHARD H. GAUTHIER, J.
John F. Rowley, Dist. Atty., Victor J. Dauterive, Jr., Asst. Dist. Atty., Chalmette, for State.
J. Wayne Mumphrey, Jeffrey Perigoni, Chalmette, for relator.
Before REDMANN, C.J., and GARRISON and BARRY, JJ.
We granted certiorari to afford to relator appellate review of his conviction and sentence of ten days and $125 fine for operating a motor vehicle while "under the influence of alcoholic beverages," La.R.S. 14:98.
Relator's complaint relative to the form reciting his refusal to be tested by photoelectric intoximeter is pretermitted as legally insignificant in our context. Refusal to be tested is irrelevant to the charged offense (although test results might be evidence of intoxication or non-intoxication).
Relator also complains that the evidence was insufficient to establish his guilt beyond a reasonable doubt, citing State v. Raymo, 419 So.2d 858 (La. 1982). We conclude that the evidence was sufficient.
The evidence includes testimony of an investigating deputy sheriff (in whom the trial judge evidently placed credibility rather than in defendant's ex-wife, who drove to the scene to assist defendant) of a "strong" smell of alcohol on defendant's breath, of defendant's slurred speech and "staggering." The deputy also testified of defendant's "fumbling" on picking up coins and stumbling on turning around in field sobriety tests. Two other witnesses established that defendant was driving an automobile.
That evidence suffices to show both that defendant had been drinking alcoholic beverages and that those beverages had influenced his ability to do such simple tasks as walk, turn around and talk: in short, that defendant was "under the influence of alcoholic beverages" while driving a motor vehicle.
Affirmed.