Daniel M. Ormsby v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-259

November 2, 2005

DANIEL M. ORMSBY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM VAN BUREN COUNTY CIRCUIT COURT

[NO. CR 2003-195]

HONORABLE MICHAEL A. MAGGIO,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Daniel M. Ormsby was convicted in a bench trial of driving while intoxicated, second offense, and sentenced to fourteen days in jail and a fine of $500 with $200 suspended. On appeal, Ormsby's sole argument is that the evidence was insufficient to sustain his conviction. Specifically, Ormsby argues that the State failed to prove that he was intoxicated. We affirm.

State Patrol Officer Kip Stringer arrested Ormsby on the evening of April 4, 2003. Stringer testified that, on this date, he was on routine patrol on U.S. Highway 65, when he noticed a truck with one headlight out traveling south and turning onto Highway 95. Stringer testified that he stopped the truck because of the headlight and not because of the behavior of the driver. The driver, Ormsby, pulled over into a driveway just off the highway. Ormsby explained to Stringer that the passenger in the car was a friend that he was driving home because the friend had too much to drink. According to Stringer, there was an odor of alcohol coming from Ormsby. Stringer testified that Ormsby admitted to some drinking earlier in the evening.

Stringer asked Ormsby to step out of the truck and take a field sobriety test. Stringer testified that Ormsby said, "Don't do this to me," and he made other statements about not wanting to go through with the sobriety tests. Stringer asked Ormsby to take three field sobriety tests. Stringertestified that he was trained to do field sobriety tests and to notice different clues as indicators of intoxication. The first test was the "finger touch" test, which is not recognized by the Arkansas Law Enforcement Training Academy as a standard field sobriety test. According to Stringer, Ormsby could not touch his fingertips as he counted.

The second test was the "walk-and-turn" test. Stringer testified that Ormsby did not take short steps when making the turn, that he began walking before instructed to do so, and that he stumbled a few times on the gravel driveway. Stringer stated that the lighting on the driveway was the flashing blue lights of his patrol car, and Stringer was not sure whether the headlights of the vehicles provided any light at the time of the tests. The third test involved Ormsby standing on one leg and counting. According to Stringer, Ormsby put one hand on Stringer to balance himself during the test, and he also began this test before being instructed to do so.

After the field sobriety testes, Stringer attempted to administer a portable breath test to Ormsby. Ormsby did not blow hard enough into the machine to get a good reading. Stringer testified that Ormsby told him that he had emphysema, which prevented him from blowing hard into the machine. According to Stringer, Ormsby failed the sobriety tests, smelled of alcohol, and had bloodshot eyes and slurred speech. Stringer then arrested Ormsby and transported him to the sheriff's office. At the sheriff's office, Stringer advised Ormsby of his rights regarding the Breathalyzer test. Ormsby signed the rights form and again told Stringer that he had emphysema. Once again, Ormsby was not able to give a satisfactory sample during the Breathalyzer test. Stringer did not charge Ormsby with the refusal of the test because, according to Stringer, he gave Ormsby the "benefit of the doubt" regarding his statement that he had emphysema. At the district court trial, Ormsby testified that a doctor had never diagnosed him with emphysema and that he had never seen a doctor for this condition.

Investigator Bobby Lockard of the Van Buren County Sheriff's Office testified that he stopped to see if Stringer needed any assistance with the traffic stop. Lockard tended to the passenger in the vehicle and observed part of the field sobriety tests and the portable breath test. According to Lockard, Ormsby could not blow hard enough for the breath test. Lockard noticed an odor of alcohol on Ormsby. Lockard also witnessed the Breathalyzer test given to Ormsby at the sheriff's office. According to Lockard, Ormsby could not give a sufficient breath for a sample, and he still smelled of alcohol.

Brandy Enloe, an administrator at the sheriff's office, testified that she was present when Ormsby attempted to take the Breathalyzer test in the office. According to Enloe, Ormsby agreed to take the test, but he could not give a sufficient sample. Enloe was not close enough to Ormsby to observe any smell of alcohol or behavior indicative of intoxication.

Ormsby made a motion to dismiss, arguing that the State failed to prove that he was intoxicated. The trial court found Ormsby guilty of driving while intoxicated.

In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in a light most favorable to the State and considers only evidence that supports the verdict. O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004). A conviction will be affirmed if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Id.

Pursuant to our DWI statute, a person violates the law by either operating a motor vehicle while intoxicated or operating a motor vehicle with a blood-alcohol content of eight-hundredths (0.08) or more. Ark. Code Ann. § 5-65-103 (Supp. 2003). Intoxication is defined as:

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.

Ark. Code Ann. § 5-65-102 (Repl. 1997). The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003) (citing Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999)). Opinion testimony regarding intoxication is admissible. Id. The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant's fear of the results of the test and the consciousness of guilt. Id.; Etheredge v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 9, 2005) (holding that even when refusal to submit is not charged, evidence of refusal is relevant to show consciousness of driving while intoxicated).

Here, Ormsby failed the field sobriety tests. Both Lockard and Stringer testified that they smelled intoxicants on Ormsby's person. Stringer opined that he believed Ormsby was intoxicated. Stringer noticed that Ormsby had bloodshot eyes and slurred speech. Ormsby initially resisted the field sobriety tests by stating, "Don't do this to me." The foregoing evidence is sufficient to prove Ormsby was intoxicated. Moreover, Ormsby refused to provide an adequate breath sample for a Breathalyzer test, stating the unsubstantiated excuse that he suffered from emphysema.

Affirmed.

Griffen and Vaught, JJ., agree.