Roberts v. State

Sandra Colleen ROBERTS v. STATE of Arkansas

CR 95-647                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 1, 1996


1.   Appeal & error -- failure to present authority or convincing
     argument -- issue not considered -- rule consistent with
     presumption that statutes are constitutional. -- The supreme
     court does not consider even a constitutional argument where
     the appellant presents no citation to authority or convincing
     argument in its support, and it is not apparent without
     further research that the argument is well taken; this rule is
     consistent with the well-established principle that statutes
     are presumed to be constitutional and that the burden of
     proving otherwise rests with the party challenging the
     statute.

2.   Appeal & error -- merits of argument that State should have
     paid for additional blood-alcohol test not reached -- indigent
     status is mixed question of fact and law -- no finding or
     stipulation of indigence made. -- Where, without reference to
     any statute, appellant contended that she refused a second
     blood-alcohol test due to indigence, the supreme court did not
     reach the merits of the argument; the record did not establish
     that appellant refused an additional test because she lacked
     the funds to pay for it or that she was indigent at the time
     of her arrest; indigent status is a mixed question of fact and
     law; no finding of indigence was made by the trial court in
     this case, nor did the parties stipulate that appellant was
     indigent at the time of the arrest.  

3.   Appeal & error -- appellant failed to establish prejudice
     where legality of blood-alcohol test result not contested and
     no argument raised below demonstrating necessity for second
     test. -- Where appellant stipulated below that she did not
     contest the legality of the 0.05-percent blood-alcohol test
     result or the traffic stop and raised no argument
     demonstrating that a second test was necessary to an adequate
     defense, she failed to establish that she was prejudiced by
     the absence of an additional test.

4.   Appeal & error -- speculative contention not considered for
     first time on appeal. -- Where the record failed to reveal
     that appellant's speculative contention regarding a rising
     blood-alcohol level was raised before the trial court, the
     supreme court did not consider it for the first time on
     appeal. 

5.   Appeal & error -- argument based upon false premise was
     without merit. -- Appellant's argument that, due to alleged
     constitutional violations, her consent to take a blood-alcohol
     test that was administered by a law-enforcement officer was
     involuntarily given was based upon a false premise and was
     without merit.

6.   Contempt -- contempt arguments met by controlling case. --
     Where appellant argued that the trial court erred in finding
     her in contempt for her refusal to attend a pre-sentencing
     screening because her participation would have violated her
     constitutional right against self-incrimination and because
     she did not waive her right to a jury trial on the contempt
     charge, the supreme court noted that it had recently
     considered and rejected both arguments in the controlling case
     of Watson v. City of Fayetteville, 322 Ark. 324, 909 S.W.2d 637 (1995).

7.   Appeal & error -- illegal sentence -- allegation treated as
     problem of subject-matter jurisdiction -- reviewed whether or
     not objection was made. -- Although appellant did not raise
     below the issue of the trial court's lack of authority to
     impose a jail sentence for violation of Ark. Code Ann.  5-65-
     303 (Repl. 1993), she was not precluded from raising it on
     appeal because the supreme court treats an allegation of an
     illegal sentence as a problem of subject-matter jurisdiction
     that may be reviewed whether or not an objection was made in
     the trial court.

8.   Appeal & error -- jail sentence illegal on its face -- error
     relating only to punishment may be corrected in lieu of
     reversing and remanding -- sentence modified. -- Appellant's
     jail sentence was illegal on its face because the trial court
     lacked authority to impose it; where the trial court's error
     has nothing to do with the issue of culpability and relates
     only to punishment, the appellate court may correct the error
     in lieu of reversing and remanding the case; thus, the supreme
     court modified appellant's sentence for violating section 5-
     65-303 by deleting the suspended sentence of thirty days in
     jail with credit for one day served.


     Appeal from Washington Circuit Court, Fourth Judicial
District, First Division; William A. Storey, Judge; affirmed as
modified.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 4-1-96   *ADVREP5*






SANDRA COLLEEN ROBERTS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,



CR 95-647



APPEAL FROM WASHINGTON COUNTY
CIRCUIT COURT, FOURTH JUDICIAL
DISTRICT, FIRST DIVISION,
NO. CR 94-932,
HON. WILLIAM A. STOREY, JUDGE


AFFIRMED AS MODIFIED.






     Appellant, Sandra Colleen Roberts, appeals the order of the
Washington County Circuit Court finding her guilty of driving
without a license, of violating Arkansas Code Annotated  5-65-303
(Repl. 1993) of the "Underage Driving Under the Influence Law" 
codified at Arkansas Code Annotated  5-65-301 to -311 (Repl. 1993
& Supp. 1995) ("Underage DUI Law"), and of direct contempt of
court.  Appellant raises four arguments for reversal.  Jurisdiction
is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(1)
and (3).  We affirm the trial court's judgment as modified.
     The parties stipulated below to the following facts.  On
September 25, 1993, appellant was arrested at a roadblock for
driving under the influence and having no driver's license.  At
that time, appellant was aged sixteen years, unemployed, and a
high-school student.  Approximately fifty-six minutes after the
traffic stop, appellant registered 0.05% blood alcohol after taking
a certified BAC DataMaster test.  Appellant does not contest the
legality of the traffic stop or the results of the blood-alcohol
test.  
                     1.  Public-service work
     Appellant's first argument assails the constitutionality of
section 5-65-306, the public-service work provision of the Underage
DUI Law.  Section 5-65-306 provides as follows:
          Any underage person who pleads guilty or nolo
     contendere or is found guilty of violating  5-65-303
     shall be ordered by the court to perform public service
     work of the type and for the duration as deemed
     appropriate by the court.
    
Appellant summarily argues, without citation to authority, that
section 5-65-306 violates our state constitutional due-process
guarantee, Ark. Const. art. 2,  8, because it authorizes a trial
court to pronounce a penalty of indefinite duration, and violates
our state constitutional equal-protection guarantee, Ark. Const.
art. 2,  18, because it applies only to underage persons.  The
trial court sentenced appellant to perform thirty hours of public
service for the substance-abuse program of the Salvation Army in
Fayetteville.  
     We do not reach the merits of this argument.  We do not
consider an argument, even a constitutional one, when the appellant
presents no citation to authority or convincing argument in its
support and it is not apparent without further research that the
argument is well taken.  E.g., Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773
(1995).  This rule is consistent with the well-established
principle that statutes are presumed to be constitutional and the
burden of proving otherwise rests with the party challenging the
statute.  E.g., Dougan v. State, 322 Ark. 384, 912 S.W.2d 400
(1995); Cook, 321 Ark. 641, 906 S.W.2d 681.  Appellant does not
explain how the General Assembly's failure to express a statutory
maximum duration for community service pursuant to section 5-65-306
offends her due-process right, or how the statute's underage
classification offends her equal-protection right.  We do not
consider such deficient contentions on appeal.  Cook, 321 Ark. 641,
906 S.W.2d 681; Stevens, 319 Ark. 640, 893 S.W.2d 773.
                     2.  Blood-alcohol test
     Without reference to any statute, appellant's second argument
is that she refused a second blood-alcohol test due to indigence,
and that the state should have paid for the additional test and
later taxed its cost to her because it is a violation of Arkansas
Constitution, Article 2, section 18, and the United States
Constitution, Amendment 14, to allow "people of means to get a
second test, but to deny that right to an indigent person[.]"  We
are aware that the implied-consent provision of the Underage DUI
Law, section 5-65-309(a), provides that an underage driver shall be
deemed to have consented, subject to the provisions of Arkansas
Code Annotated  5-65-203 (Repl. 1993), to a chemical test or tests
of her blood, breath, or urine for the purpose of determining its
alcohol or controlled-substance content.  Section 5-65-203(b)(1),
in turn, provides that, if a person whose blood alcohol is tested
by a law enforcement officer requests an additional test, the cost
of the second test shall be borne by the person tested.     
     We do not reach the merits of this argument.  First, the
record does not establish that appellant refused an additional test
because she lacked the funds to pay for it.  As appellant's counsel
conceded in oral argument before this court, appellant did not tell
anyone at the time of her arrest that she wanted an additional
blood-alcohol test or that she could not afford to pay for one. 
Further, the record fails to establish that appellant was indigent
at the time of her arrest.  Appellant contends that she was at
least "temporarily indigent" on the basis of the stipulated fact
that she was an unemployed minor student at the time of the arrest. 
This contention is not persuasive.  Indigent status is a mixed
question of fact and law to be determined upon consideration of
such factors as the individual's total income, including income
from unemployment benefits, total assets, total indebtedness,
able-bodiedness, and level of education.  Hill v. State, 305 Ark.
193, 805 S.W.2d 651 (1991).  No finding of indigence was made by
the trial court in this case, nor did the parties stipulate that
appellant was indigent at the time of the arrest.  
     Second, appellant fails to establish that she was prejudiced
by the absence of an additional test.  Appellant stipulated that
her blood alcohol registered 0.05% as a result of the test that was
administered by the law enforcement officer after the traffic stop. 
The Underage DUI Law proscribes the operation or actual physical
control of a motor vehicle by an underage person if, at that time,
there was 0.02% but less than 0.10% by weight of alcohol in the
person's blood as determined by chemical test.  Section 5-65-
303(b).  Below, appellant stipulated that she did not contest the
legality of the 0.05% blood-alcohol test result or the traffic
stop, and raised no argument demonstrating that a second test was
necessary to an adequate defense.
     Appellant also argues that the state's failure to pay for an
additional test violated her state and federal constitutional
rights to gather exculpatory evidence.  Ark. Const. art. 2,  10;
U.S. Const. amend. 6.  This argument is without merit on the facts
of this case in which, as we have noted, appellant stipulated to
the accuracy of the 0.05% blood-alcohol test result and raised no
argument demonstrating the necessity of a second test to an
adequate defense.  Appellant's counsel contended in oral argument
before this court, that had a higher second-test result been
obtained, it would have shown that appellant's blood-alcohol level
was rising with the passage of time and therefore was less than
0.02% at the time she was operating her vehicle.  The record,
however, fails to reveal that this speculative contention was
raised before the trial court, thus, we do not consider it for the
first time on appeal.  Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).
     Finally, appellant contends that due to the aforementioned
alleged constitutional violations, her consent to take the test
that was administered by the law enforcement officer was
involuntarily given.  This argument, which is based upon a false
premise, is without merit.  Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
                          3.  Contempt
     Appellant's third argument is that the trial court erred in
finding her in contempt of court for her refusal to attend a pre-
sentencing screening at Ozark Guidance Center.  Appellant argues
that the contempt ruling was erroneous because her participation in
the screening would violate her constitutional right against self-
incrimination and because she did not waive her right to a jury
trial on the contempt charge.  We have recently considered and
rejected both of these arguments in Watson v. City of Fayetteville,
322 Ark. 324, 909 S.W.2d 637 (1995), which controls this case.
                        4.  Jail sentence
     The trial court sentenced appellant to a suspended sentence of
thirty days in jail, with credit for one day served.  Appellant's
fourth argument is that a jail sentence for violating section 5-65-
303 is illegal on its face because the trial court lacked authority
to impose it.  See sections 5-65-304 (suspension of driver's
license), -305 (monetary fine), -306 (public-service work), -307
(alcohol and driving-education program), and -311 (relationship to
other laws).  Although appellant did not raise this issue below,
she is not precluded from raising it on appeal because we treat an
allegation of an illegal sentence as a problem of subject-matter
jurisdiction that we may review whether or not an objection was
made in the trial court.  Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Howard v. State, 289 Ark. 587, 715 S.W.2d 440
(1986).  
     The state concedes the jail sentence was not authorized by
statute and we agree.  The jail sentence is illegal on its face
because the trial court lacked authority to impose it.  Richards v.
State, 309 Ark. 133, 827 S.W.2d 155 (1992).  Where the trial
court's error has nothing to do with the issue of culpability and
relates only to punishment, we may correct the error in lieu of
reversing and remanding the case.  Bangs v. State, 310 Ark. 235,
835 S.W.2d 294 (1992); Richards, 309 Ark. 133, 827 S.W.2d 155. 
Thus we modify appellant's sentence for violating section 5-65-303
by deleting the suspended sentence of thirty days in jail with
credit for one day served.
     The trial court's judgment of conviction and sentence is
affirmed as modified.