
    STATE of Louisiana v. Ronald D. AUSTIN.
    No. 83 KW 1370.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1984.
    Office of Dist. Atty., Ascension Parish, Donaldsonville, for respondent.
    Alan J. Robert, Gonzales, for relator.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Ronald D. Austin, convicted of first offense DWI under LSA-R.S. 14:98, applied for a writ of review on December 8, 1983, challenging the sufficiency of the State’s evidence. On December 16, this court ordered the state to file a response to defendant’s application by January 4, 1984. On January 19, after the State had failed to respond as ordered, we granted the application and issued the writ to review the State’s case.

While returning from a Jambalaya Festival late at night, Austin rear-ended a car being driven without taillights on U.S. 61, a major highway just north of La. 621. Arriving at the scene to investigate, State Trooper Doug Robertson noticed, as he approached to question Austin, that his eyes were “red and glassy, and he had a moderate odor of alcohol about his person.” He gave both Austin and the driver of the other car, who admitted to being at fault in the accident, a field sobriety test.* The other driver did well, but Austin “didn’t do quite — didn’t do too well, he did not pass the field sobriety test.”

In the test Robertson required Austin to walk heel to toe for ten paces, turn and retrace his steps in the same way. He testified that Austin swayed when he turned and stumbled as he walked. He then had Austin tilt his head back, close his eyes and touch his nose with his index fingers. Austin failed to touch the tip of his nose, although “he may have touched the bridge of his nose.” Robertson also noticed that Austin’s speech was slurred and the odor of alcohol was stronger when he talked. He concluded that Austin was intoxicated and arrested him for driving while intoxicated.

Robertson admitted on cross examination however that a field sobriety test — indicative at most of impaired motor skills and at least of simple uncoordination — without a chemical or other test of the blood does not conclusively or even reliably determine that a person is intoxicated or under the influence of alcohol or other drugs. Some peo-pie can fail the test even though they are stone sober.

For reasons undisclosed in the record, the results of a photoelectric intoximeter test, which might have allowed the State to rely on the presumption of intoxication as provided in LSA-R.S. 32:662, were not admitted into evidence.

Neither of the other two testifying witnesses — one for the State, the other for the defendant — remembered smelling any alcohol, although they both testified they weren’t paying that much attention. Mr. Masters, the driver responsible for the accident, did remember seeing Austin sway but not stumble. Mr. Paul Villemarette, a disinterested defense witness, was travelling just ahead of Austin in the outside lane. He testified:

A vehicle — the same that I was in — as I approached it I was in very short distance of it I noticed that there were no taillights on the vehicle. I had to swerve to miss the car into the left hand lane. And as soon as I passed it I proceeded back in the right hand lane I looked up in my rear view mirror, and I saw the car that was behind me hit the car that I had to swerve to miss.

He also testified that he did not notice any slurred speech although Austin looked a little dazed after the accident and expressed concern that his wife might be injured.

The inference can be drawn from this testimony that Austin should have been able to see and avoid Masters’ automobile just as Villemarette had done had he not been under the influence.

According to State v. Fontenot, 408 So.2d 919, 921 (La.1981):

Operating a vehicle while intoxicated is defined as “the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbituates.” R.S. 14:98. In order to convict an accused of driving while intoxicated the state need only prove that (1) defendant was operating a vehicle or other conveyance; and (2) that defendant was under the influence of alcoholic beverages or some type of drug.

The trial court found the defendant guilty as charged, reasoning that

[the] failing of the field sobriety test in and of itself, does not give a conclusive result. However, the Court feels that when this is compared with the other signs observed by the trooper, and not contradicted, such as the red eyes, glassy eyes, odor of alcohol, (moderate when in the vicinity of the defendant, and stronger when speaking with the defendant), and the slurred speech, together with the fact that the defendant had been at a festival which served alcoholic beverages, although there was no direct evidence of the defendant’s ingestion of alcohol. The Court feels that the State has proven [an impairment of motor skills] due to the ingestion of alcohol, or some other drug ... [and] has met its burden of proof.

The defendant argues first that the State did not prove that he was intoxicated or under the influence of alcohol because Robertson administered an abbreviated and therefore invalid version of the field sobriety test recommended in the State Trooper Training Manual. He required Austin to walk only ten of the recommended twenty paces in the walking test, had him tilt his head back instead of face forward in the finger-to-nose test, and either combined the balance test with the finger-to-nose test or omitted it altogether. We consider these variations too minor to affect the validity of the test.

Second, he argues that because of its general unreliability, the field sobriety test is an invalid means of determining intoxication without more direct (i.e. scientific) proof of alcohol consumption. Notwithstanding the admitted shortcomings of a field sobriety test, we are not prepared to hold that the State must produce direct evidence of alcohol or other drug consumption (such as a chemical analysis of the defendant’s blood) before it can obtain a conviction for drunk driving when there is other reliable circumstantial evidence sufficient to support the finding of intoxication.

In fact, LSA-R.S. 32:662(C), concerning the use of chemical tests, specifically permits the use of other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages.

Credibility evaluations to resolve conflicting testimony are evaluations of the weight, not the sufficiency, of the evidence, which are factual determinations solely within the discretion of the trier of fact and not reviewable on appeal. All of the evidence in this ease, including Robertson’s testimony reflecting his observations of the defendant before and during the field sobriety test, is sufficient to support the finding of intoxication, and the trial judge’s decision to credit his testimony, even though contradicted, is a factual matter beyond appellate review. See State v. Johnson, 446 So.2d 1371 (La.App. 1st Cir.1984). We cannot say therefore that no rational trier of fact could have found Austin guilty beyond a reasonable doubt. We must therefore affirm the conviction.

AFFIRMED.

SAVOIE, J., dissents and assigns reasons.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and defendant’s identity as perpetrator of that crime,beyond a reasonable doubt. See La.C.Cr.P. art. 821. The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. L.S.A.-R.S. 15:438. Exclusion of every reasonable hypothesis of innocence is, therefore, a component of the more comprehensive reasonable doubt standard where circumstantial evidence is used to convict. State v. Nealy, 450 So.2d 634 (La.1984).

In this matter, the only evidence that the defendant was driving while intoxicated is the testimony of State Trooper Doug Robertson. Trooper Robertson’s testimony is completely unsupported by any other testimony and, in point of fact, is contradicted by Mr. Masters, driver of the other vehicle, and Mr. Paul Villemarette, an independent and unbiased witness to the accident.

The essence of Trooper Robertson’s testimony is three-fold: (1) that Mr. Austin’s eyes were red and glassy; (2) that he had a moderate odor of alcoholic beverage about his person; and (3) he failed to pass a field sobriety test.

As to Mr. Austin’s eyes being red and glassy, this is unsupported by the testimony of either Mr. Masters or Mr. Villemar-ette. Assuming that his eyes were red and glassy, such condition could result from any one of a number of causes, not the least of which could have been the fact that he had just been involved in an automobile accident. This testimony, standing alone, is not indicative in any way that Mr. Austin was driving while intoxicated or driving while under the influence of alcohol.

Trooper Robertson’s testimony that the defendant had a moderate odor of alcoholic beverage about his person is unsubstantiated either by Mr. Villemarette or Mr. Masters. The second witness called by the State, Mr. John Masters, the driver of the vehicle which caused the accident, stated that he did stand next to Mr. Austin while the trooper was questioning him, but he did not notice any odor of alcohol. Two interesting observations as to Mr. Masters’ testimony should be made: (1) this was the State’s witness who was testifying in direct contradiction with the testimony of Trooper Robertson; (2) it would have been in Mr. Masters’ best interest to testify just the opposite in order to avoid civil liability as a result of the accident. Mr. Villemarette, who was called as defendant’s witness and who was totally unbiased in the matter, stated that he did, in fact, talk to Mr. Austin following the accident and that he did not smell any odor of alcohol coming from Mr. Austin. Thus, the testimony relative to Mr. Austin’s having the odor of alcohol about him is negated by the testimony of the State’s witness, Mr. Masters, and defendant’s witness, Mr. Villemarette.

Finally, the .State relied upon the field sobriety test to obtain a conviction of Driving While Intoxicated against Mr. Austin., No chemical test for intoxication or blood test for intoxication was offered by the State to show that the defendant was legally intoxicated. Therefore, we should examine, in detail, the field sobriety test administered by Trooper Robertson.

The abbreviated field sobriety test consisted of requiring the defendant to walk ten paces towards him and asking defendant to place his feet together, tilt his head back, close his eyes, and touch his nose with his forefinger. On the walking test, the officer testified that he asked defendant to walk towards him for approximately ten paces, then return and walk away. The officer admitted, under cross-examination, that the State Police Manual requires that defendant be required to walk twenty feet in one direction, turn and walk back in order to properly administer a field sobriety test. The officer required the defendant to walk a straight line, even though there, was no line marking on the highway, and required the defendant to walk heel-to-toe for this test. Mr. Austin argues, in brief, that no one walks heel-to-toe as a normal means of traversing from one location to another, that this test is designed to force an individual, even one who is not impaired, to be awkward and unbalanced. I agree. To ask Mr. Austin, who had just been involved in an automobile accident, to walk heel-to-toe on an imaginary, straight line, to turn and then walk back, is indicative of nothing. It is to Mr. Austin’s credit that both Mr. Masters and Mr. Villemarette thought that he had performed his test well.

The second test administered to defendant was a balance test wherein the defendant was required to tilt his head back, close his eyes, and touch his nose with his index finger. Trooper Robertson stated defendant failed to pass this test because he missed the tip of his nose. He did admit, however, that the defendant did, in fact, touch his nose during this test with both fingers, but not with the tip of his finger.

We note once again that this test is more stringent than that called for by the Police Manual. The Police Manual does not require that a person tilt his head back. It requires only that one stand straight with eyes closed, and touch his nose with his index finger. Once again, Mr. Masters and Mr. Villemarette both testified that the defendant had passed this test also.

Trooper Robertson made reference to the defendant’s slurred speech. However, this is negated once again by Mr. Villemarette and Mr. Masters.

Under the particular circumstances of this case, the worst that can be said of defendant is that the field sobriety test was inconclusive. Or, stated in another manner, viewed in the light most favorable to the prosecution, this evidence would warrant a finding that the field sobriety test and procedures were inconclusive as to whether or not any alcohol had been consumed by defendant, or how much alcohol had been consumed by the defendant.

This is not a swearing match between the arresting officer and the driver. The State Trooper gave his testimony. In support thereof, the State presented the testimony of Mr. Masters. Mr. Masters’ testimony, however, completely contradicted the testimony of the State Trooper. Then the defendant presented the testimony of Mr. Villemarette who was totally unbiased since he knew neither Mr. Masters, Trooper Robertson, nor the defendant, Mr. Austin. Mr. Villemarette’s testimony also completely and totally contradicted the testimony of Trooper Robertson. The evidence does not even support a suspicion that defendant had been drinking.

The majority opinion relies on the fact that since Mr. Villemarette was driving immediately in front of defendant and he was able to swerve and avoid running into the rear of the vehicle driven by Mr. Masters, the inability of defendant to do so was evidence that he was driving while intoxicated. This is, at best, speculation, and there is nothing in the record to support this fact.

A very reasonable hypothesis in this matter is that the defendant, having just been involved in an automobile accident, was a little dazed and was concerned about his wife, who he feared was injured in the accident. A reading of the entire record reflects that not only is this a reasonable hypothesis, it is the only reasonable hypothesis.

For the above and foregoing reasons, I respectfully dissent.  