blood alcohol test in West Virginia

2014In Gibbs, the driver argued that she was “unable to comprehend and respond” to the Trooper’s request that she submit to a blood alcohol test. 180 W.

2014Va. at 218 , 376 S.E.2d at 112 .

1996With this assumption in view, the defendant contends that the evidence presented by the state was all circumstantial evidence and that under State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983), circumstantial evidence will not support a guilty verdict unless it is proved to the exclusion of every reasonable hypothesis of innocence.

1996With this assumption in view, the defendant contends that the evidence presented by the state was all circumstantial evidence and that under State v. Gum, 172 W.Va. 534 , 309 S.E.2d 32 (1983), circumstantial evidence will not support a guilty verdict unless it is proved to the exclusion of every reasonable hypothesis of innocence.

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996The trial court allowed the blood alcohol test results to come in as "other evidence of intoxication." See State v. Dyer, 177 W.Va. 567 , 355 S.E.2d 356 (1987).

1996The trial court allowed the blood alcohol test results to come in as "other evidence of intoxication." See State v. Dyer, 177 W.Va. 567 , 355 S.E.2d 356 (1987).

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996Therefore, the defendant argues that it was proper to introduce the remaining blood test results in the defendant's case-in-chief, without waiving the objection to admitting the blood alcohol test results. 10 .We held in Syllabus Point 2 of State v. Chamberlain, 178 W.Va. 420 , 359 S.E.2d 858 (1987), that: " ‘Before a physical object connected with a crime may properly be admitted into evidence, it must be shown that the object is in substantially the same condition as when the crime was committed.

1996Therefore, the defendant argues that it was proper to introduce the remaining blood test results in the defendant's case-in-chief, without waiving the objection to admitting the blood alcohol test results. 10 .We held in Syllabus Point 2 of State v. Chamberlain, 178 W.Va. 420 , 359 S.E.2d 858 (1987), that: " ‘Before a physical object connected with a crime may properly be admitted into evidence, it must be shown that the object is in substantially the same condition as when the crime was committed.

1996Factors to be considered in making this determination are: (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it.' Syllabus Point 1, State v. Davis, 164 W.Va. 783 , 266 S.E.2d 909 (1980).'' We find these factors satisfied in the instant proceeding. 11 .

1996Factors to be considered in making this determination are: (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it.' Syllabus Point 1, State v. Davis, 164 W.Va. 783 , 266 S.E.2d 909 (1980).'' We find these factors satisfied in the instant proceeding. 11 .

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996The defendant contends the trial court’s display of bias is prohibited under State v. Crockett, 164 W.Va. 435 , 265 S.E.2d 268 (1979) and State v. McGee, 160 W.Va. 1 , 230 S.E.2d 832 (1976), overruled on other grounds, State v. McAboy, 160 W.Va. 497 , 236 S.E.2d 431 (1977).

1996In support of this contention, the defendant cites Nash v. Fidelity-Phenix Insurance Company, 106 W.Va. 672 , 146 S.E. 726 (1929), for the proposition that a trial court may question a witness to clear up an obscure point, but not engage in an extended examination of a witness, as is alleged here. 5 The defendant also cites State v. Bennett, 172 W.Va. 131 , 304 S.E.2d 35 (1983), as prohibiting a trial court from rehabilitating a witness, as is contended here. 6 We need not be detained by Nash and Bennett because they cannot be harmoniously juxtaposed to the facts under review here.

1996In support of this contention, the defendant cites Nash v. Fidelity-Phenix Insurance Company, 106 W.Va. 672 , 146 S.E. 726 (1929), for the proposition that a trial court may question a witness to clear up an obscure point, but not engage in an extended examination of a witness, as is alleged here. 5 The defendant also cites State v. Bennett, 172 W.Va. 131 , 304 S.E.2d 35 (1983), as prohibiting a trial court from rehabilitating a witness, as is contended here. 6 We need not be detained by Nash and Bennett because they cannot be harmoniously juxtaposed to the facts under review here.

1996In support of this contention, the defendant cites Nash v. Fidelity-Phenix Insurance Company, 106 W.Va. 672 , 146 S.E. 726 (1929), for the proposition that a trial court may question a witness to clear up an obscure point, but not engage in an extended examination of a witness, as is alleged here. 5 The defendant also cites State v. Bennett, 172 W.Va. 131 , 304 S.E.2d 35 (1983), as prohibiting a trial court from rehabilitating a witness, as is contended here. 6 We need not be detained by Nash and Bennett because they cannot be harmoniously juxtaposed to the facts under review here.

1996In support of this contention, the defendant cites Nash v. Fidelity-Phenix Insurance Company, 106 W.Va. 672 , 146 S.E. 726 (1929), for the proposition that a trial court may question a witness to clear up an obscure point, but not engage in an extended examination of a witness, as is alleged here. 5 The defendant also cites State v. Bennett, 172 W.Va. 131 , 304 S.E.2d 35 (1983), as prohibiting a trial court from rehabilitating a witness, as is contended here. 6 We need not be detained by Nash and Bennett because they cannot be harmoniously juxtaposed to the facts under review here.

1995Id.

1995Id. at ___, 426 S.E.2d at 308 .

1995Id. at ___, 426 S.E.2d at 308 .

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that “whiskey breath” alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant’s

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that "whiskey breath" alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant's

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that “whiskey breath” alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant’s

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that "whiskey breath" alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant's

1985For instance, in Haste v. Kentucky Unemployment Insurance Commission, 673 S.W.2d 740 (Ky.App.1984), after ruling that the results of a blood alcohol test performed on the claimant were incompetent due to the lack of foundation for admission, no opportunity for cross-examination, and no showing of the chain of custody of the blood sample, the court held that the remaining evidence, that the claimant smelled of alcohol and made improper remarks to a fellow employee of the opposite sex, was insufficient to find a misconduct discharge for reporting to work under the influence of alcohol.

1985For instance, in Haste v. Kentucky Unemployment Insurance Commission, 673 S.W.2d 740 (Ky.App.1984), after ruling that the results of a blood alcohol test performed on the claimant were incompetent due to the lack of foundation for admission, no opportunity for cross-examination, and no showing of the chain of custody of the blood sample, the court held that the remaining evidence, that the claimant smelled of alcohol and made improper remarks to a fellow employee of the opposite sex, was insufficient to find a misconduct discharge for reporting to work under the influence of alcohol.

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that “whiskey breath” alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant’s

1985See also Robert v. Ross, 55 A.D.2d 492 , 390 N.Y.S.2d 691 (1977) (In case disposed of on other grounds, court observed that "whiskey breath" alone is insufficient evidence to support finding of misconduct discharge for intoxication); Llano v. Levine, 51 A.D.2d 620 , 377 N.Y.S.2d 808 (1976) (No support for conclusion that claimant was guilty of drinking on the job or intoxicated based upon showing up for work with odor of alcohol on breath after being warned not to do so); Thompson v. Brown, 163 So.2d 868 (La.Ct.App.1964) (Fact that employer's office manager could smell alcohol upon claimant's

1980Code, 17C-5A-5, and by our cases of State v. Dyer, 160 W.Va. 166 , 233 S.E.2d 309 (1977), and State v. Hood, 155 W.Va. 337 , 184 S.E.2d 334 (1971).

1980Code, 17C-5A-5, and by our cases of State v. Dyer, 160 W.Va. 166 , 233 S.E.2d 309 (1977), and State v. Hood, 155 W.Va. 337 , 184 S.E.2d 334 (1971).