*1 volition, his an of own committed act appellant, prohibited laws this State was thus as conse- by penal imprisoned in his own actions. While he was prison, quence necessarily to the rules established authorities. As a subject by prison matter of he was in allowed grace privilege, participate rule, work-release he was later denied that program. By privilege. view, In himself in a placed my appellant voluntarily position where his choices were dictated others. In with the by keeping Act, I stated would conclude that purpose appellant’s sepa- ration from the work-release program “voluntary.” it, I I am bound our decision in
Although disagree Therefore, I. Rankin I concur in decision. today’s v. PORTER STATE of Arkansas
Justin CA CR 02-1237
Court of of Arkansas Appeals II
Divisions and III delivered Opinion June *3 Osmon & David L. by: Ethredge, Ethredge, appellant. Bebee, Gen., Davies, Gen., Mike Ass’t Att’y by: Att’y DavidJ. for appellee.
Wendell L. Griffen, This arises from a Judge. appeal intoxicated, offense, conviction of while third driving Porter, of in Baxter appellant, County. (1) Appellant argues Justin the trial court erred in him while finding guilty driving intoxicated because the blood test taken in accordance with Ark. Code Ann. 5-65-201 showed a chemical 1997) (Repl. analysis § blood;
of .05% of his that the trial court erred in by weight (2) blood test as definitive admitting considering hospital proof of his when the intoxication test was not taken in accordance with the Arkansas Omnibus DWI Act. reverse and We dismiss. 20, 2001,
theOn crashed his car at morning May appellant work, 6:30 a.m. while on his in a roughly one-vehicle way accident. was alone in the vehicle. At subse- Appellant trial, bench Arkansas State Brown testified that quent Trooper Jim he arrived on the scene after the accident. Brown smelled shortly odor of alcohol on He appellant’s person. questioned at the site of the accident about his operation vehicle. told Brown that he was on his to work. Appellant way Brown to the Baxter accompanied appellant County Hospital, where received treatment for his and where injuries two blood-alcohol tests were on him. performed indicated that the first hospital’s patient summary report blood-alcohol test occurred at or around 7 a.m. The test showed a trial, blood-alcohol content of At .0904%. Deborah K. Williams testified that she was the Director Services at Baxter Laboratory and that she was Regional for the Hospital responsible supervision of blood those did samples processing She not samples. of blood from supervise because she was not drawing However, then at the she testified that the employed hospital. *4 followed a certain blood tests hospital protocol drug involving the test site with a non-alcohol cleansing substance preparation the blood after the site drawing was cleaned. The blood thus drawn was of the processed chemistry hos- department followed a of the pital’s laboratory, results. Williams tes- report tified that she saw no reason to believe that this was not procedure followed in the case of first blood test. At the end of Williams’s the State moved to admit the testimony, hospital into evidence. Counsel for did patient summary report appellant not object. Williams,
Counsel for cross-examined appellant subsequently nurse, thus that could not tell Williams whether a a establishing technician, or a doctor drew the blood first test. Cross-examina- tion also elicited Williams’s that because the first testimony stating order, drawn for a on a the blood test was physician physician’s blood, who drew the of personnel, regardless actually hospital the would have followed above procedure. test, the second blood Officer Brown testified
Concerning that he observed second blood test conducted at around being technician, that a 9 a.m. Brown stated lab drew the McCoy, Julie blood. Brown her a asked to use “red solution” rather specifically than alcohol in for needle insertion. to the preparation According officer, Betadine, the red substance looked and smelled like a sub- stance he had seen used in of blood alcohol tests being preparation several times before. Brown sent the to the Arkansas State sample Crime received a result of .05%. Laboratory eventually case, At the end State’s counsel for moved to He dismiss. stated specifically:
The State has not client was intoxicated at the proved my time the accident occurred. theBy admission of the at Trooper, collision, the time of the six-thirty test was drawn some time before seven o’clock. the blood alcohol By the State he given by occurred, was .09 at the time that this incident I believe the blood alcohol of the State of Arkansas was .10. This occurred in and the May law had not At yet changed. the time that occurred, this he under the was limit of the State of legal Arkan- sas, and so with that I don’t believe the State can move forward in client was proving my intoxicated. took fohowing colloquy place: I think it’s in the Judge, discretion of the Court toas
State: .10, totality circumstances between .05 Judge. It’s matter. The discretionary motion will be The Court: denied. At this counsel for chose to rest point, his case. The remainder of the concerned The trial court hearing sentencing. DWI, offense, convicted third and sentenced him to twelve months in county jail sixty days suspended. Appellant on one *5 and ordered to placed year supervised probation pay $1,500. court costs of $300 and a fine of From this conviction arises this appeal.
Analysis
first
and his motion to dismiss in
Appellant’s
point,
below,
the court
a
constitutes
to the
of the
challenge
sufficiency
evidence. See Ark. R.
P.
Crim.
see also Green v.
33.1(b) (2003);
State,
Ark.
At the time of Ark. Code Ann. 5-65-103 1997) (Rep. provided: §
(a) It is unlawful and punishable as in this act for provided any who is intoxicated to person or be in actual operate physical control of a motor vehicle.
(b) It is unlawful and as in punishable this act for provided any or be in actual person control of a operate physical motor vehicle if at that time there was one-tenth of one percent (0.10%) or more in alcohol weight person’sblood as determined blood, urine, breath, aby chemical test of the person’s or other substance. bodily convict,
In order to the State must all elements under both prove subsections of Ark. Code Ann. 5-65-103. Neble v. § Ark. Furthermore, the Code based on certain blood-alcohol levels within four provides, hours after the offense: alleged
(1) If there was at that time one-twentieth of one percent blood, (0.05%) or less of alcohol in the defendant’s by weight urine, breath, substance, or other it shallbe bodily presumed the defendant was not under the influence of intoxicating liquor;
595 (2) If there was at the time in excessof one-twentieth of one (0.05%) but less than one-tenth one percent (0.10%) percent blood, urine, breath, in the of alcohol defendant’s weight or substance, other such fact shall bodily not rise to give any pre- that the defendant was or sumption was not under the influence but this fact be intoxicating may considered with other liquor, evidence in or innocence competent determining guilt defendant.
Ark. Code Ann. 5-65-206(a)(1)-(2) 1997). Arkansas (Repl. § has held Court evidence a Supreme competent DWI supporting conviction to consist of a defendant’s blood-alcohol content of .06 officers’ that did not percent, police doubt that the testimony they intoxicated, defendant was that observed the defendant’s they slurred and red and and that one speech officer smelled glassy eyes, defendant, the odor of intoxicants on who also admitted that he had “had a few.” v. State 326 Ark. 931 S.W.2d Johnson, trial court’s (1996) of directed verdict (reversing to the grant defendant based on low blood-alcohol level).
Here, we hold that the State did not DWI. The prove first blood test showed a result of .0904 blood-alcohol percent level. Even evidence, this result be used though as may according to Ark. Code Ann. it 5-65-206(a)(2), does not trigger pre § test, of intoxication. The second blood sumption upon request officer, resulted in investigating .05 police blood percent level, alcohol not in excess of the then limit. legal
The State also us to the points of Officer testimony Brown, emitted a odor indicating of intoxica strong tion when Brown came into contact with That appellant. hap around 6:30 in the pened after had crashed morning, his accident, vehicle in a one-vehicle on his to work. We cer way defer to the trial tainly court’s superior assess witness ability Crain v. credibility, 79 S.W.3d We do not doubt officer Brown’s credibility ques tion whether or not omitted a odor of intoxica However, tion. we find this insufficient to testimony support DWI conviction. 5-65-206(a)
We that Ark. Code recognize Ann. § (1) -(2) enables our trial courts to consider evidence of blood
alcohol content in excess of .05 but less than .10 percent, percent. court, above, We also that our as stated has acknowledge supreme found sufficient evidence in a case where the defendant’s blood *7 alcohol content .06 was but where also percent, police testimony established that defendant had slurred red and speech, glassy eyes, intoxicants, that he smelled of and that defendant admitted that he However, had a few drinks. See State v. Johnson, supra. present case before us involves a defendant whose blood-alcohol con to blood test conducted according according tent — Furthermore, statutory .05 requirements available percent. —was established that emitted a police testimony merely appellant odor of intoxication. There was no testimony concerning speech his, pattern, appearance admission of appellant’s eyes, or any else that would anything of intoxication. support We finding decline to draw a inference from an odor alone because sweeping odor, itself, does not tell whether the yet drank person actually alcohol above the limit. We have held that the legal previously fact of an accident and odor of intoxicants alone does not consti tute substantial State, evidence of intoxication. Stiversv. 64 Ark. case, In that the accused had a one-car accident and the officer testified that the investigating accused seemed after the unresponsive accident. Id. sleepy We found it reasonable to infer that his rather than injuries intoxi cation could have caused his Id. In our impaired response. present case, in of the fact that neither blood light test resulted in blood- limit, alcohol levels in excess of the then we cannot now hold legal case is one in which blood-alcohol content and a mere of an odor of intoxication allegation is sufficient for proof Therefore, DWI. we reverse and dismiss.
Concerning we note that appellant’s remaining point, faded to his second preserve con appeal argument, cerning erroneous admission of the alleged results of the first test, blood-alcohol because failed to file a motion in limine the test results concerning before the trial or otherwise to the admission of the object results at trial. The failure to object an or raise issue in a motion an issue from raised for prevents being the first time on Floresv. appeal. S.W.3d 896 (2002). and dismissed.
Reversed JJ., agree. Hart, Vaught, Roaf, dissent. JJ., Crabtree, Bird Based on our stan- dissenting.
Terry Crabtree, Judge, review, dard of I am unable to that there is no substan- say tial evidence to conviction for while support appellant’s driving intoxicated, Therefore, third offense. I respectfully disagree reversal of this conviction based on insufficient majority’s evidence.
The facts of this case are State straightforward. Trooper Jim Brown a one-vehicle accident that occurred at around investigated six o’clock on 2001. Sunday morning, May the driver and sole of the vehicle that was involved in the occupant *8 scene, wreck. While at the Officer Brown detected the odor of alcohol about Brown described the odor as appellant’s person. being “strong.” was taken to the A blood
Appellant hospital. sample .a.m., drawn at 7:00 and by of that hospital testing sample showed blood-alcohol content to be .0904%. This test result, it, and the about were admitted into testimony evi- given dence without Another blood was taken at objection. 9:00 sample a.m. at the direction of Officer Brown. The result of that test showed a blood-alcohol level of .05%.
Our has two different legislature provided ways proving State, 81, DWI violation. Worthamv. 65 Ark. 985 S.W.2d offense, At the time of the (1999). Arkansas Code Annotated section 5-65-103 that it 1997) (a) is unlawful . . . (Repl. provided who is intoxicated to any or be in actual person operate physi vehicle, cal control of a motor or it is unlawful (b) ... for any to or be in actual person control of a operate motor vehi physical cle if at that time there was one-tenth or more (0.10%) percent by of alcohol in the blood weight as determined a chemi person’s by blood, urine, breath, cal test of the or person’s other sub bodily statute, stance. In order to be in violation of this it need be “intoxicated”; that the accused was it is not proven for it necessary to be that the accused’s blood-alcohol content reached the proven State, 536,
level
Mace v.
.10%.
328 Ark.
Appellant argues
evidence is
appeal
insufficient
based on the test result
a blood-alcohol
showing
content of .05%
and the afore-mentioned
found in Ark Code Ann.
presumption
however,
5-65-206(a)(1). This
argument ignores,
contradic
§
blood-alcohol result
tory
which showed an increased level of alco
at
hol
.0904%. Variances and
discrepancies
proof go
are,
therefore,
of the evidence
weight
credibility
matters
for the factfinder
to resolve. Hunter v.
62 Ark. App.
In the of the determining evidence to a sufficiency support conviction, criminal the court is to view the appellate evidence in the most favorable the and light to consider the appellee only State, evidence that the verdict. Milesv. supports 350 Ark. 85 S.W.3d 907 (2001). When the evidence is viewed in the appro .0904%, is, it shows a blood-alcohol level of priate light, which of and incidentally, .10% much than just shy .05%. In greater addition to that test result a substantial of showing alco presence hol, there was evidence that was involved in a one-vehi appellant accident, cle and there was from the officer testimony investigating alcohol about was a odor of appellant’s person. that there strong this in evidence here test result distinguishes The blood-alcohol State, Ark. v. case from Stivers the the evidence to be insufficient where where we found
(1998), and that the smelled of alcohol showed State’s proof accident. Based on the .0904% test involved in a one-vehicle was alcohol, result, and loss of the odor of apparent appellant’s vehicle, that there is no substantial evi- of his I cannot say control that fact’s conclusion was dence to the trier of support reac- alcohol to such a that his affected the degree by ingestion tions, skills, altered such and were motor judgment substantially a clear and substantial danger injury that he constituted physical himself and others. or death to conclusion
The reaches contrary by discounting majority evidence, It so the the test result of does weighing .0904%. by evidence, the and on the resolving judgment credibility passing However, favor. it was in the evidence in conflicts appellant’s determinations, not court on the factfinder to make those this for there It is our to determine whether is substan- job appeal. simply verdict, tial evidence to evidence support viewing the evi- most favorable to the considering only light appellee result was admit- dence that the verdict. test .0904% supports evidence ted into evidence without objection competent for the trial court to consider and deem Under a trustworthy. review, convic- of our standard of proper application tion must be affirmed. second concerns the trial court’s admission
Appellant’s point that it of the test result. The states is not address .0904% majority However, that issue. in that the evidence is insuf ing determining ficient, the has in fact embraced the raised majority arguments in his second for reversal. This is This test point wrong. result was admitted without issue as to its objection any has not been in admissibility Secondly, preserved appeal. evidence, the court is to reviewing sufficiency appellate evidence, in all consider its review of the even which might be considered inadmissible. Harris v.
S.W.2d 334
The effect
is that a driver’s
majority opinion
crashing
accident,
of his car in a single-car
that the
accompanied by proof
driver had a
smell of alcohol about him
and tested positive
content,
sufficient,
.0904% blood-alcohol
is not
as a matter
law,
to sustain a conviction for DWI. The majority opinion
under State v.
suggests
Johnson,
Claims BROWN, Inc. v. Management, M. Kemberly Employee CA 03-81
Court of of Arkansas Appeals
Divisions II and III delivered Opinion June denied rehearing July [Petition 2003.]