MANEK v. STATE

MANEK v. STATE
1973 OK CR 142
507 P.2d 1311
Case Number: A-17949
Decided: 03/13/1973
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Oklahoma County; Robert L. Berry, Judge.

Everett Pete Manek, Appellant, was convicted for the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, After a Former Conviction and was sentenced to a term of one and a half (1 1/2) years imprisonment and a fine of $100.00 and he appeals. Judgment and sentence is affirmed.

Charles W. Adams, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., and Fred H. Anderson, Asst. Atty. Gen., and Amy Hodgins, Legal Intern, for appellee.

OPINION

BUSSEY, Judge.

¶1 Appellant, Everett Pete Manek, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Case No. CRF-72-1989, for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, After a Former Conviction. His punishment was fixed at one and a half (1 1/2) years imprisonment and a fine of $100.00 and from said judgment and sentence, a timely appeal has been perfected to this Court.

¶2 At the trial, Trooper John Stanberry testified that on August 19, 1972, at approximately 6:15 P.M., he observed a car hanging over the guardrail on I-35. He proceeded to the scene and observed that the car door was open and defendant was standing near the guardrail. He asked the defendant what happened and the defendant stated that a truck had run him off the road. Defendant stated that no one else had been in the vehicle with him. The defendant had a strong smell of alcohol about his person, his speech was slurred and kept repeating himself. He advised defendant that he was placing him under arrest for driving under the influence. The defendant consented to take a breathalyzer test and was advised not to smoke any cigarettes since such action would affect the test results. Defendant was placed in the patrol car and the trooper returned to direct traffic. He looked back at the patrol car and observed the defendant sitting on the guardrail smoking a cigarette. The trooper put out the cigarette and placed the defendant back in the patrol car. The defendant then picked up the radio microphone and proceeded to broadcast messages accentuated with vulgar expressions. The defendant was transported to the Oklahoma County Jail where a breathalyzer test was administered to him. The result of the test was .26 percent weight volume alcohol to blood concentration. Trooper Stanberry testified that in his opinion, the defendant was more than under the influence of alcohol.

¶3 The defendant testified that he was driving on I-35 when a semitrailer truck pulled in front of him causing him to swerve to prevent hitting the truck. His vehicle skidded on the gravel and struck the guardrail. He testified that prior to the accident, he was playing pool at a club and consumed six or seven cans of 3.2 beer over a two or three hour period. He testified that in his opinion, he was not drunk and was able to drive the car. He admitted a prior conviction for driving under the influence of intoxicating liquor. On cross-examination, he testified that he was driving approximately 55 miles per hour when the car went out of control.

¶4 Tom Manek and Stella Manek, the defendant's father and mother, testified that they had never observed the defendant drunk.

¶5 Trooper Stanberry was called in rebuttal and testified that based upon his investigation at the scene, the defendant was driving between 75 and 80 miles per hour, in his opinion.

¶6 The defendant asserts three propositions of error, none of which we deem contains sufficient merit to warrant discussion. We observe that the evidence of defendant's guilt is overwhelming and that the punishment is well within the range provided by law. The judgment and sentence is accordingly affirmed.

BLISS, P.J., and BRETT, J., concur.