Wood v. State

OPINION

BUSSEY, Judge:

The 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 County 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 patrol 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 stopped 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 concentration 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 support of this argument; thus, this Court will not consider his contention. Ward v. State, 628 P.2d 376 (Okl.Cr.1981).

Defendant’s second assignment of error is that the trial court improperly limited counsel’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, 678 P.2d 725 (Okl.Cr.1984). This Court will reverse a trial court’s decision only where there is a clear abuse of discretion resulting in prejudice. Hall v. State, 698 P.2d 33 (Okl.Cr.1985). Given the positive identification made by other witnesses at trial, the court’s limitations were neither an abuse of discretion, nor prejudicial.

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, § 11-902(A)(1) are not vague nor unconstitutional. Parker v. State, 424 P.2d 997 (Okl.Cr.1967); Synnott v. State, 515 P.2d 1154 (Okl.Cr.1973). The 1982 version provides a more detailed description of what constitutes intoxication, and therefore, is likewise neither vague nor unconstitutional. This assignment of error is without merit.

For the above and foregoing reasons the judgment and sentence is AFFIRMED.

PARKS, P.J., dissents. BRETT, J., concurs.