Michael Mills v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, Judge

DIVISION II

MICHAEL MILLS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-110

September 5, 2001

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

CR99-316-2

HON. DAVID S. CLINGER, JUDGE

AFFIRMED

Michael Mills was convicted in a Benton County bench trial of misdemeanor Driving While Intoxicated (DWI) and speeding. For the DWI, Mills received a seven day sentence in the Benton County Jail, which was suspended for one year conditioned on his not committing any alcohol-related offense, two days' community service, and a $350 fine. He was fined $25 and assessed court costs of $150 for the speeding violation. On appeal, Mills seeks reversal of the DWI conviction, arguing that: 1) the trial judge erred in finding that it was reasonable under the circumstances to detain him during his traffic stop for more than the fifteen minutes allowed under Rule 3.1 of the Arkansas Rules of Criminal Procedure, andtherefore, all the evidence obtained after exceeding this time limit should be inadmissible; and 2) the exclusion of that evidence leaves insufficient evidence to sustain his conviction for DWI. We affirm.

After Mills was convicted in Rogers Municipal Court of DWI, speeding, and failure to yield to an emergency vehicle1, he appealed to Benton County Circuit Court. In his bench trial, the trial judge simultaneously heard Mills's motion to suppress with the case presented on the substantive charges.

The policeman that stopped Mills, Officer Ronnie Harper, was not present at the trial, and the parties agreed to try the case partially on stipulated facts. A stipulation was read into the record that on October 30, 1998, at 10:00 p.m., Officer Harp stopped Mills for speeding and failing to yield to an emergency vehicle. Mills was going 59 in a 40 miles-per-hour zone, and he failed to yield to an emergency vehicle. Officer Harp was a certified law enforcement officer, trained and experienced in giving field sobriety tests, no shift change was in progress, and there were no adverse weather conditions at the time that Mills was stopped. It was also stipulated that Officer Harp called Officer Chad Hartman to perform a field sobriety test because Officer Hartman was working on a DWI grant, and that Officer Hartman arrived on the scene at 10:12 p.m., conferred with Officer Harp, spoke to Mills, and then took Mills to a flat place near the back of his police car where he performed a field-sobriety test, which made the time from the stop to the arrest twenty-one to twenty-five minutes.

The State called Officer Hartman, a deputy with the Benton County Sheriff's Office. He confirmed that he was called by Officer Harp, arrived on the scene at 22:12, conferred with Officer Harp, and then spoke with Mills. Over Mills's hearsay objection, the trial court admitted Officer Hartman's testimony that Officer Harp had told him that he had smelled intoxicants on Mills, for the limited purpose of establishing why Officer Hartman took the actions that he did. Officer Hartman also confirmed that Officer Harp was trained to perform file sobriety checks, and that the reason that he was called was because he was working on a special grant to enforce DWI and traffic-related offenses. Officer Hartman stated that Mills's speech was "a little bit slow," that Mills was cooperative with him, but that there were "very noticeable signs of swaying or staggering around." Officer Hartman administered several field-sobriety tests, including the horizontal gaze nystagmus, the one-leg-stand test, and the walk-and-turn test, all of which indicated that Mills was intoxicated. According to Officer Hartman, Mills was placed under arrest no later than 10:20 p.m., eight to ten minutes after he had arrived on the scene. He then transported Mills to Bentonville for a breathalyzer test. According to Officer Hartman, Mills took the breathalyzer test at 10:42 p.m. and his sample showed .16.

On cross-examination, Officer Hartman stated that he earned for the county "about $1,000 working on the grant program." He claimed that he only had to "go out and enforce" DWI laws, but admitted that the grant required him to turn in the number of DWI arrests that he made and that was why he was called to the scene. Officer Hartman also stated that his observations of Mills only confirmed what Officer Harp had told him regarding Mills'scondition; thus, he developed no new information in speaking with Mills. He estimated that he began to conduct the field sobriety tests about three to four minutes after arriving at the scene, so that Mills had been stopped fifteen-to-sixteen minutes before he began the tests.

Mills moved to dismiss because the stop exceeded the fifteen minute limit imposed by Rule 3 of the Arkansas Rules of Criminal Procedure. He asserted that Officer Harp was qualified to perform the tests and that the only reason for calling Officer Hartman was because of the grant program. At a June 12, 2000, hearing on the suppression motion, the trial court denied the suppression motion, finding that the fifteen-minute rule is "somewhat flexible" and that the delay was not "unreasonable." It also found that there was probable cause to arrest for speeding, failure to yield to the police car, and DWI. The trial court scheduled a subsequent hearing to allow Mills to make a directed-verdict motion on the charges. In a written directed-verdict motion, Mills argued that if the motion to suppress was granted the following evidence, viewed in the light most favorable to the State, was not sufficient to support a conviction: driving 59 mph in a 45 mph zone; weaving within his line but never crossing the lane divider; failing to yield to an emergency vehicle; upon attempting to exit his vehicle his falling backwards into his vehicle and stopping his fall by putting his hand on the ground; Deputy Harp smelled the odor of alcohol on him; his eyes appeared weary and bloodshot; and his speech was slow. However, he conceded that if the motion to suppress was not granted, the fact that he "blew a .13" was "sufficient enough to get by a directed verdict." The trial court found Mills guilty of DWI and speeding but dismissed thefailure to yield charge.

Mills first argues that the trial court erred in finding it was reasonable, under the stipulated circumstances, to detain him and extend the fifteen-minute rule for investigative purpose allowed by Rule 3.1 of the Arkansas Rules of Criminal Procedure, and that all evidence obtained after this time limit should be inadmissible. Mills contends that it is undisputed that the time between the traffic stop and the arrest exceeded the fifteen minutes specified in Rule 3.1. of the Arkansas Rules of Criminal Procedure, and was actually between twenty-one and twenty-five minutes. Citing the American Law Institute commentary to Rule 3.1, which he urges this court to look to for guidance, he asserts that none of the sound reasons for allowing the detention and extending the time period articulated in the commentary apply to the instant case, and neither do common sense principles of reasonableness. This argument is unavailing.

When reviewing the trial court's denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Newton v. State, 73 Ark. App. 285, 43 S.W.3d 170 (2001). Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require theperson to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Here, there was no violation of Rule 3.1 because during the entire pre-arrest detention, Officer Harp already had probable cause to arrest Mills for the speeding offense which

conviction Mills does not challenge on appeal. Consequently, Mills was not simply stopped and detained to allow the officer to further determine the lawfulness of his conduct in regard to his erratic driving and odor of intoxicants. See Beebe v. State, 303 Ark. 691, 799 S.W.2d 547 (1990)(per curiam). "Probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Id. (citing Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981)). Determination of probable cause is based upon the factual and practical considerations of every day life upon which reasonable and prudent men act. Id. All presumptions are favorable to the trial court's ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id.

Mills next argues that the exclusion of the evidence pursuant to a violation of Rule 3.1 of the Arkansas Rules of Criminal Procedure leaves insufficient evidence to establish a conviction for Driving While Intoxicated, Arkansas Code Annotated § 5-65-103. Mills argues that if the court reverses the denial of the suppression motion, then there is insufficient evidence to sustain his conviction. He reiterates the same list of evidence thathe cited to the trial court and asserts that it is insufficient to sustain his conviction. He urges this court to find Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998), analogous, in which this court reversed a DWI conviction based on circumstantial evidence. This argument is wholly contingent upon this court reversing on Mill's first point regarding the denial of his motion to dismiss. Accordingly, because we have affirmed the denial of that motion, we need not address this argument.

Affirmed.

Pittman and Hart, JJ., agree.

1 The "emergency vehicle" was the police car that was attempting to stop Mills for speeding.