Stephens v. StateStephens v. State
- Reporters:
- , ,
- Before:
- Corbin
Appellant, Dwayne Edward Stephens, appeals a judgment of the Washington County Circuit Court convicting him of driving while intoxicated, fining him $250.00 plus court costs, suspending his driver‘s license for ninety days, and sentencing him to serve thirty days in jail (conditionally suspended) and to attend the Ozark Guidance Center. Jurisdiction of this case is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(3). Appellant asserts two points for reversal. We find no error and affirm.
FACTS
The facts in this case are not disputed. Arkansas State Police Officer Robert Gibson was dispatched at approximately 3:57 p.m. on October 30, 1993 to the scene of a one-vehicle accident near Spring Valley. Gibson arrived on the scene at 4:25 p.m. and discovered an unattended smashed vehicle overturned on State Highway 412, which he later testified was a “very busy road.” Gibson observed a half-full bottle of liquor in the vehicle. The vehicle‘s driver, Gibson later testified, was on his way to the hospital.
Gibson called Arkansas State Police Officer Larry Boone and instructed him to go to the hospital and, if alcohol appeared to be involved, to collect a sample from the driver for blood alcohol testing. The blood alcohol chemical test report later showed that appellant‘s blood sample was collected by Boone at 4:52 p.m. and contained 0.15% blood alcohol.
After clearing the highway accident scene, Gibson arrived at the hospital where he found appellant in bed being treated by a physician for injuries to his right arm. The physician told Gibson he could talk to appellant. In response to Gibson‘s questions, appellant identified himself, and stated he was the driver and owner of the vehicle, and had been drinking prior to driving. Both Gibson and Boone later testified that appellant smelled of intoxicants at the hospital.
Gibson stated: “I then after I got my information, I advised him that I would be arresting him in the room at that particular time.” Gibson then “left out and let the doctor finish.” When the medical treatment was finished, the treating physician told Gibson that appellant needed to go home and rest. Gibson and appellant walked to Gibson‘s vehicle where Gibson wrote out citations against appellant for DWI, driving left of center, and not wearing a seatbelt. Gibson then drove appellant home.
Appellant was convicted in the Springdale Municipal Court on January 14, 1994 of DWI, driving left of center and not wearing a seatbelt. He appealed to the Washington County Circuit Court, where, on April 21, 1994, a bench trial was held. Officers Gibson and Boone were the state‘s only witnesses. Appellant‘s blood alcohol test report was admitted into evidence without objection. The defense presented no evidence. The trial judge dismissed the driving left of center and no seatbelt charges for lack of proof, but found that appellant was guilty of DWI. The trial court‘s judgment and sentence was filed on August 3, 1994. This appeal arises therefrom.
SUFFICIENCY OF EVIDENCE
Appellant challenges the sufficiency of the evidence and asserts the state did not prove he was the operator of the vehicle involved in the accident, or that his blood alcohol level at the time of the accident was in excess of the legal limit.
Appellant first argues that the only evidence that he was the operator of the vehicle was his pre-arrest statement to Gibson that he was the driver. Appellant characterizes this statement as an out-of-court confession which was insufficient to support his conviction unless accompanied by other proof that the offense was committed.
We are relegated to the traditional meaning of the word “confession” as it is used in section 16-89-111(d), a provision which was added to our criminal code in 1868 without an emergency clause or other document descriptive of legislative intent. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). This court has stated “`[a] confession is an admission of guilt as to the commission of a criminal act.‘” Id. at 307, 742 S.W.2d at 914 (quoting Workman v. State, 267 Ark. 103, 589 S.W.2d 20, 21 (1979)).
Appellant‘s statement that he was the driver of the vehicle is not an admission of guilt as to the commission of the criminal act of DWI because that crime is defined as the operation or actual physical control of a motor vehicle by a person who is intoxicated or whose blood alcohol level at that time is 0.10% or more by weight as determined by chemical test.
(1) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver‘s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.
Appellant‘s second challenge to the sufficiency of the evidence is his assertion that the only evidence that his blood alcohol level was 0.10% or more at the time of the accident was the blood alcohol test report which, he argues, was insufficient to sustain his conviction because no evidence was introduced to relate his blood alcohol level as tested to his blood alcohol level at the actual time of the accident. Therefore, appellant argues, his conviction should be reversed. We reject appellant‘s argument because we hold substantial evidence existed for the trial court to find that appellant was guilty of DWI on the ground of intoxication.
The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In deciding whether the evidence is substantial, the general rule is:
The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. [Citation omitted.] We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. [Citation omitted.] To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. [Citation omitted.]
Walker v. State, 313 Ark. 478, 481, 855 S.W.2d 932, 933 (1993) (quoting Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993)). In this case, the evidence and all reasonable inferences deducible therefrom are viewed in the light most favorable to the state as the party which is relying upon the evidence. Yacono, 285 Ark. 130, 685 S.W.2d 500.
In deciding whether evidence is substantial, appellate courts take notice of the unquestioned laws of nature. Yacono, 285 Ark. 130, 685 S.W.2d 500. Consistent with this principle, this court has repeatedly observed that blood alcohol content decreases with the passage of time. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). In this case, it is undisputed that appellant‘s blood alcohol test sample was collected approximately fifty-five minutes after Gibson was initially dispatched to the accident scene. Because appellant‘s overturned vehicle was located in the middle of a busy highway, it is reasonable to infer that the accident was reported to the state police and that appellant was transported to the hospital shortly after the accident occurred. It is reasonable to infer that appellant did not consume alcohol while he was being transported from the accident scene to the hospital or while he was at the hospital. Therefore, it is reasonable to infer from the facts of this case that, at the time the alleged offense occurred, appellant‘s blood alcohol level was higher than its reported post-accident level of 0.15%, in excess of the legal limit.
Proof of the motorist‘s blood alcohol content is not necessary for a conviction of DWI on the ground of intoxication. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). However, proof by chemical test that the motorist‘s blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Elam, 286 Ark. 174, 690 S.W.2d 352; Yacono, 285 Ark. 130, 685 S.W.2d 500. In this case, the blood alcohol test report, coupled with the recited facts contained in the testimonies of Officers Gibson and Boone, constituted substantial evidence from which the trial court could find that appellant was intoxicated at the time of the accident.
AUTOMOBILE ACCIDENT REPORT PRIVILEGE
Secondly, appellant asserts his pre-arrest statements to Gibson constituted privileged information which should have been suppressed at trial. Appellant argues these statements were privileged because they were made in discharge of his statutory duty under
It is undisputed that appellant filed no written report of his accident with the state police. The only written report of the accident was prepared and filed by Gibson. Appellant, however, asserts the statutory automobile accident report privilege barred Gibson‘s testimony as to appellant‘s pre-arrest statements because those statements were used by Gibson in the preparation of the report which was filed.
Appellant‘s only authority for his argument is Norstrom v. State, 587 So.2d 1148 (Fla.Dist.Ct.App.1991), in which the Florida District Court of Appeal held the trial court erred in admitting the taped statement of motorist Norstrom, given while in police custody and after he had waived his Miranda rights, during the investigation of a vehicular homicide. The court of appeal ruled the statement inadmissible because it was made during the accident investigation and was privileged under Florida‘s automobile accident report privilege provision,
Appellant argues then, without persuasive authority, that the automobile accident report privilege rendered inadmissible Gibson‘s testimony as to appellant‘s pre-arrest statements, and that the trial court‘s ruling permitting the testimony was reversible error. Although this argument is apparently one of first impression in this state, it has been addressed by other jurisdictions. See John A. Tarantino, Using The Automobile Accident Report Privilege To Bar Police Officer Testimony, 4 DWI Journal 6 (Jan.1989). The reported weight of authority, we have found, is that, in most criminal proceedings, testimony by police officers relating to admissions by drivers for the purpose of preparing automobile accident reports is admissible. See Randy R. Koenders, Annotation, Admissibility of Police Officer‘s Testimony At State Trial Relating to Motorist‘s Admissions Made In Or For Automobile Accident Report Required By Law, 46 A.L.R.4th 291, §§ 2[a]; 4[a] & [b] (1986 & Supp.1994).
We find appellant‘s argument is without merit. A plain reading of section 27-53-208(b)(1) shows the automobile accident report privilege is expressly extended only to the report itself2. By its express terms, the statute does not shield testimony of the investigating officer as to that officer‘s observations made in preparing his report, including statements made to the officer by the motorist. Other state courts interpreting identical or similar automobile accident report privilege statutes have likewise concluded the privilege does not bar the testimony of the investigating officer. See, e.g., Creary v. State, 663 P.2d 226 (Alaska Ct.App.1983); Spradling v. State, 628 S.W.2d 123 (Tex.Ct. App.1981). We also note with interest that, since the Norstrom case, the State of Florida has amended its automobile accident report privilege statute to specifically permit testimony of the investigating officer to the extent the motorist‘s privilege against self-incrimination is not thereby violated. State v. Riley, 617 So.2d 340 (Fla.Dist.Ct.App.1993).
The fundamental concern addressed by those courts which have extended the automobile accident report privilege to bar
Our standard for reviewing the trial court‘s ruling admitting the challenged testimony is abuse of discretion pursuant to A.R.E. Rule 103. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993). On this record, we find no abuse.
Appellant also argues on appeal that admission of Gibson‘s testimony as to his pre-arrest statements violated his rights under the
The trial court‘s judgment is affirmed.