Nelson Moy v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

NELSON MOY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-254

OCTOBER 23, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIFTH DIVISION, [NO. 01-853]

HONORABLE WILLARD

PROCTOR, JR., JUDGE

AFFIRMED

Appellant Nelson Moy was charged with driving while intoxicated and violation of the implied consent statute, found at Ark. Code Ann. § 5-65-205(d)(1) (Repl. 1997). There were other offenses charged in relation to this incident (reckless driving, driving on a suspended driver's license, and having no proof of insurance), but those were nolle prossed. Prior to trial, appellant pleaded guilty to driving while intoxicated. A bench trial was conducted on the remaining charge of violating the implied consent statute, and appellant was found guilty. Appellant appeals challenging the sufficiency of the evidence to support his conviction. We affirm.

When the sufficiency of the evidence is challenged on appeal, the test is whether the evidence is substantial. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998). Evidence is substantial if it is forceful enough to compel a conclusion one way or another and goes

beyond mere speculation or conjecture. Id. Our court reviews the evidence in the light most favorable to the State and considers only evidence that supports the verdict. Id. A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. E.g., Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000); Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). We do not determine the credibility of the witnesses; that duty is left to the trier of fact. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

We review the following evidence produced at this bench trial in light of our standard of review. Officer Jimmy Evans of the Little Rock Police Department testified that appellant's vehicle had been pulled over, and he was called to the scene to administer a portable breathalyzer test. At the scene, appellant attempted several times to blow into the portable breathalyzer testing machine, but his breath would not register at all. Evans believed that appellant was blowing air through his nose instead of his mouth and that appellant was "pretty well intoxicated."

Evans then transported appellant to the Pulaski County Detention Center, where Evans advised appellant of his rights regarding chemical testing and presented a rights form. The form contained the implied consent law, the assertion that a test or tests would be administered to determine his level of intoxication, and the statement that if he refused to take any of the tests requested by the officer, then he would be subject to the penaltiesprovided by law for such refusal. The form also indicated that if he took the officer's test or tests, then he would have the right to an additional test or tests. Appellant indicated that he understood his rights, he initialed the form indicating that he understood, and he refused the breathalyzer test. Appellant signed his name to the form, but wrote above his signature "urine test" and underlined those words. Officer Evans told appellant that a breathalyzer test was the test to be administered and that if he wanted a urine test, he had a right to one after the breathalyzer test was completed. Officer Evans indicated to appellant that this procedure was in line with what the rights form indicated. Appellant responded, "Just put me in jail." The State rested on the officer's testimony.

Appellant moved for a directed verdict asserting that he could not make a knowing, intelligent waiver of any rights due to his state of intoxication. Appellant also argued that he was undoubtedly trying to submit to a urine test. The trial judge disagreed that voluntary intoxication was a defense to this crime, and disagreed that appellant's choosing another test negated his refusal to take the test that the officer chose. The motion was denied, and appellant testified in his own defense.

Though appellant testified at first that he was not sure if he was intoxicated that night, he then admitted his intoxication in light of his guilty plea to DWI. Appellant stated that on the night in question he tried four times to blow into the portable breathalyzer at the scene. Appellant then wanted a different test, which is why he jotted it down on the form at the detention center. Appellant testified that the officer told him that if he did not take the breathalyzer test at the detention center, he would be put in jail. Appellant agreed that hisresponse to the officer was to just put him in jail. Appellant renewed his motion, the State responded, and it was denied. The trial judge found appellant guilty, resulting in the present appeal.

In Arkansas, the driver of a vehicle is deemed under certain circumstances to have given consent to chemical testing to determine the level of intoxicants in his or her body. Those circumstances are outlined in Ark. Code Ann. § 5-65-202(a) (Repl. 1997), which provides:

(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:

(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person's blood; or

(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or

(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.

That appellant fits into the category of persons deemed to have given consent is not in dispute.

Arkansas Code Annotated section 5-65-203 provides that the chemical test or tests shall be administered at the direction of the law enforcement officer, and the lawenforcement agency bears the cost of the testing it seeks. The method for chemical testing must be according to those approved by the Arkansas Department of Health. Ark. Code Ann. § 5-65-204. Pursuant to Arkansas Code Annotated section 5-65-204(e)(1), the person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer. However, completion of the first test is the prerequisite to the right to an additional test. See McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

Appellant argues that the State failed to prove his intent to refuse because he was under the impression that he had already complied and was entitled to another test of his choosing. We disagree. Appellant had not yet submitted to a breathalyzer test, and it was only upon completion of a breathalyzer test that he was entitled to have a urine test. See McEntire v. State, supra (holding that McEntire either could not or would not blow into the breathalyzer machine for a sufficient period of time so that the jailer could get a reading upon two attempts, and therefore McEntire was not entitled to another test of his choice; had the test been completed, the obligation of the officers would have been different; no additional test must be offered when no breathalyzer test is completed).

To the extent that appellant implies that he could not understand his rights and obligations due to intoxication, we disagree with any such assertion. Voluntary intoxication is not a defense in criminal prosecutions. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Voluntary intoxication has been specifically rejected as a defense with regard to refusal to submit to a chemical test. See Menard v. State, 16 Ark. App. 219, 699 S.W.2d 412 (1985) (holding that this is a general intent crime for which voluntary intoxication is no defense). The trial judge's finding of fact that appellant violated the implied consent statute is supported by substantial evidence.

Affirmed.

Pittman and Bird, JJ., agree.