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05/01/92 ROGER POULNOT v. DISTRICT COLUMBIA

May 1, 1992

ROGER POULNOT, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Donald S. Smith, Trial Judge)

Before Schwelb and King, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : Roger Poulnot was found guilty at a bench trial of operating a motor vehicle under the influence of alcohol, in violation of D.C. Code § 40-716 (b)(1) (1990). On appeal, he contends that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. He also claims that the trial Judge erroneously admitted into evidence the results of two "intoxilyzer" tests of his breath, which the police administered to him more than two and a half hours after he operated the vehicle; Poulnot claimed to have ingested additional alcohol during the intervening period. Finally, Poulnot complains that the trial Judge improperly purported to take judicial notice of the rate at which an individual absorbs and metabolizes alcohol. We reject his first two contentions, agree with the third, but conclude that the error was harmless. Accordingly, we affirm.

I

At about 2:45 a.m. on August 26, 1990, Poulnot was involved in a serious traffic accident in which the occupants of another automobile were seriously injured. His conviction was based on his dangerous and erratic driving immediately before the accident, his admitted consumption of some alcohol at dinner several hours earlier, evidence that he was under the influence of alcohol approximately an hour and a half after the accident, and intoxilyzer tests of his breath which showed the presence of a substantial amount of alcohol in his system about two and a half hours after the accident.

The principal witnesses for the prosecution were a motorist who observed Poulnot operating his Mercedes-Benz shortly before the collision and a police officer assigned to the Traffic Alcohol Enforcement Unit of the Metropolitan Police Department (MPD). *fn1 The motorist, Vaughn Farrow, related that in the minutes preceding the accident he was driving his '76 Toyota Corolla in an easterly direction on Constitution Avenue, N.E. He was travelling at about 25 miles per hour (the posted speed limit) *fn2 when the operator of the Mercedes, who turned out to be Poulnot, began to "tailgate" him and eventually overtook him. Poulnot sped to a traffic light but failed to stop until he was "halfway through" the intersection. At the next light, Poulnot stopped "three quarters of the way through the light," almost "breaking the plane of where the light stood." According to Farrow, Poulnot then went through a third light just as it turned red. At this point, Farrow stopped at the red light and lost sight of Poulnot's car, but soon thereafter he heard a loud crash. Upon arriving at the scene, he saw "the black Mercedes facing down Constitution Avenue and a red Escort lying with both wheels on the curb against a tree, with two women in the car who were unconscious or weren't moving at all." Poulnot was standing at the driver's side of the Escort, saying "Lady, please don't die!" Farrow called the police and an ambulance, and assistance arrived shortly thereafter.

At some time after 4 a.m., Officer Maurice Hall responded to a police radio transmission and drove to the scene of the collision. He encountered Officer David K. Parrish, who had been investigating the accident. *fn3 Poulnot was not on the scene when Officer Hall arrived, but Hall encountered him a short time later. The officer noticed that Poulnot's eyes were bloodshot and watery, that there was a strong odor of alcohol on Poulnot's breath, that his speech was slurred, and that his clothing was in disarray.

Officer Hall was experienced in matters relating to traffic and alcohol. He had made approximately 2,000 alcohol-related arrests in his twenty-five years on the force. Concluding that Poulnot might be under the influence of alcohol, the officer proceeded to administer a number of roadside sobriety tests, including the "horizontal gaze" test, the "heel to toe" test, and the "finger to nose" test. Poulnot's performance was unsatisfactory with respect to each of these tests. Hall testified that he was therefore satisfied that Poulnot was under the influence of intoxicating liquor at 4:20 a.m.

Officer Hall told Poulnot that he wanted to take him to the MPD's Traffic Division for breath testing. Poulnot expressed some hesitation about the proposed breath test. He related to the officer that he had consumed two beers with dinner at about 10 p.m., and that two strangers had given him something to drink *fn4 at the scene, shortly after the accident, because he was nervous and crying.

Poulnot accompanied Hall to the Traffic Division. There, he voluntarily submitted to two separate "intoxilyzer" *fn5 tests at 5:20 a.m. and 5:29 a.m. In each case, the intoxilyzer revealed that his breath contained .09 percent of alcohol.

James Hill, who lives a few houses away from the scene of the accident, was the only defense witness. He heard a "loud boom," went outside to the scene of the accident. He testified that at approximately 3:30 or 3:45 a.m., he saw his roommate, Dennis Davis, with Poulnot. Shortly thereafter Davis brought Poulnot to the home Hill shared with Davis. Poulnot drank several beers (Hill testified that "it was more than one, I know") and then called a taxi. As Poulnot was about to enter the cab, the police intervened, told the driver that he could leave, and administered roadside sobriety tests to Poulnot.

After hearing the evidence, the Judge found Poulnot guilty as charged. The Judge stated that there was "no question in this court's mind [that Poulnot] was under the influence of intoxicating liquor." The Judge found it "very strange" that Poulnot had told the police that he had consumed a drink in the crowd, "and then out the fact that he had two beers at the house." The Judge concluded:

There is no way on this earth that two beers could bring him to .09 when you consider the fact that he is losing .01 every 40 minutes. So that cannot happen, and he clearly had been drinking before the accident, and his conduct is consistent with a person who is under the influence, and we find he clearly was under the influence at the time of the accident. We find the defendant guilty as charged.

II

In evaluating Poulnot's claim of evidentiary insufficiency, we view the evidence, both direct and circumstantial, in the light most favorable to the prosecution, giving full weight to the right of the Judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences. See, e.g., Abdulsbakur v. District of Columbia, 589 A.2d 1258, 1263 (D.C. 1991). We will reverse only when the proof is insufficient as a matter of law to persuade an impartial trier of fact of the defendant's guilt beyond a reasonable doubt. Id.; see also Stevenson v. District of Columbia, 562 A.2d 622, 624 (D.C. 1989).

Poulnot was prosecuted pursuant to D.C. Code § 40-716 (b)(1), which provides in pertinent part that "no individual shall, when . . . under the influence of intoxicating liquor. . . operate . . . any vehicle in the District." (Emphasis added). In State v. Deming, 66 N.M. 175, , 344 P.2d 481, 484-85 (1959) (quoting State v. Sisneros, 42 N.M. 500, , 82 P.2d 274, 278 (1938)), the court held that a person is guilty of driving while under the influence of intoxicating liquor if he or she is

to the slightest degree. . . less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself and the public.

(Emphasis added). See also Hasten v. State, 35 Ariz. 427, , 280 P. 670, 671 (1929); (evidence sufficient if driver's ability to operate car is affected to the " slightest extent " by consumption of alcohol); State v. Grimes, 160 Ariz. 329, , 773 P.2d 227 (Ariz. App. 1989) (same); State v. Rodgers, 91 N.J.L. 212, , 102 A. 433, 435 (1917) ("any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors"); State v. Noble, 119 Or. 674, , 250 P. 833, 834 (1926) (driver must be shown to have been under the influence of intoxicating liquor " to some perceptible degree "); cf. Shorter v. State, 234 Ind. 1, , 122 N.E.2d 847, 849 (1954) (requiring proof of "the loss of the normal control of one's faculties to a marked degree, caused by drinking intoxicating liquors)." *fn6

Although "appreciable" is, in our view, a more appropriate word than "slightest," see People v. Haeussler, 41 Cal. 2d 252, 261, 260 P.2d 8, 13-14 (1953), we generally agree with the quoted definition by the Supreme Court of New Mexico of the offense here at issue. It is not necessary to be drunk in order to violate the statute, and the prosecution need not prove any specific degree of intoxication. Shorter, supra, 234 Ind. at , 122 N.E.2d at 850. The question whether the defendant was under the influence of intoxicating liquor is one of fact, to be determined by the court or jury from all of the circumstances. Id.

In the present case, there was no direct evidence establishing the precise degree to which Poulnot was under the influence of alcohol at the time he was operating his vehicle. There was substantial circumstantial evidence, however, from which the Judge could reasonably conclude that Poulnot's "clear judgment and steady hand," Deming, supra, 66 N.M. at , 344 P.2d at 484, had been appreciably impaired by alcohol at the time he drove so recklessly and caused such a serious accident.

Poulnot acknowledged to Officer Hall that he had consumed two bottles of beer at dinner several hours before the collision. This may not appear to be an especially large amount of alcohol, but the trial Judge could reasonably consider the self-serving character of Poulnot's account. In light of the difference, in relation to Poulnot's alcohol consumption after the accident, between what Poulnot told the officer and what his defense witness told the court, and considering Poulnot's obvious interest in minimizing to the police the extent to which he had been drinking, an impartial trier of fact could both reasonably believe that Poulnot had imbibed alcohol before the accident and at the same time question whether "two beers" hours earlier constituted the full extent of Poulnot's indulgence.

Any inference which might reasonably be drawn in the prosecution's favor from Poulnot's admission that he drank beer at dinner was enhanced by his conduct just before the accident and by his condition thereafter. According to the uncontradicted prosecution testimony, Poulnot committed a succession of dangerous violations of the traffic laws over a very short period of time. Moreover, his erratic driving occurred immediately before he struck the Ford Escort. Specifically, Poulnot "tailgated" a car that was then travelling at about the speed limit. Soon thereafter, he passed that car. He failed to make a proper stop at three successive traffic lights. He was ...


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