George W. Hayden v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION I
No.
CACR07-1351
Opinion Delivered J UNE
GEORGE W. HAYDEN
APPELLANT
25, 2008
APPEAL FROM THE DREW
COUNTY CIRCUIT COURT,
[NO. CACR-2007-100-1]
V.
HONORABLE SAM POPE, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Judge
1.
CRIMINAL LAW – SUFFICIENT EVIDENCE SUPPORTED CONVICTION OF DRIVING WHILE
INTOXICATED .– Evidence
was sufficient to support appellant’s conviction of driving
while intoxicated pursuant to Ark. Code Ann. § 5-65-103(a); appellant did not pass
the field-sobriety tests, he admitted having ingested hydrocodone two hours before
being stopped, and he admitted to having drunk alcohol twenty minutes prior to the
stop; further, appellant’s breath smelled of alcohol, and he crossed the center line
twice; finally, within two hours of the traffic stop, appellant’s breath-test results were
more than eight-hundredths (0.08).
Appeal from Drew Circuit Court; Sam Pope, Judge; affirmed.
John F. Gibson, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for
appellee.
Appellant George W. Hayden appeals his October 1, 2007 conviction by a Drew
County Circuit Court of driving while intoxicated (DWI). On appeal, he contends the trial
court erred in denying his motion for directed verdict. The sole issue on appeal is whether
there was substantial evidence before the trial court to support appellant’s conviction. We hold
that there was and affirm.
Facts
Appellant was stopped by Arkansas State Trooper Clayton Moss around 1:00 a.m. on
May 10, 2006, because he drove over the center line two times. Trooper Moss also noted
appellant had a Coca-Cola can on his bumper. After stopping appellant, Moss detected the
smell of alcohol and noticed appellant’s eyes were red and watering. Appellant admitted to
having had five or six beers that night, and told the officer that he had his last sip twenty
minutes before being stopped. He also told Moss he had a prescription for hydrocodone,
which appellant took every four hours for back pain. Appellant last took hydrocodone at
11:00 p.m., two hours before the traffic stop.
Trooper Moss ran a portable-breath test on appellant, then performed a horizontalgaze-nystagmus test, where appellant exhibited lack of smooth pursuit in both eyes and distinct
nystagmus at maximum deviation in both eyes. Moss then gave a second portable-breath test
and decided to charge appellant with DWI.
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At the station, Moss performed one breath test with no result, then two more breath
tests, resulting in a concentration of ninety-nine-thousandths (0.099) and ninety-sixthousandths (0.096) respectively. Moss testified that appellant was given the option of having
a blood test performed at the hospital. Moss called the hospital to find out about the procedure
and the cost. The hospital would not accept Medicaid, appellant’s only form of insurance, and
appellant did not have any money to pay for the test.
At a bench trial, appellant moved for a directed verdict at the conclusion of the State’s
case, arguing the State did not meet its burden of proof regarding appellant’s blood-alcohol
content at the time he was driving. This motion was renewed at the end of all evidence, and
both motions were denied. Appellant was found guilty of DWI, assessed fines and costs, and
ordered to attend alcohol class. A timely notice of appeal was filed, and this appeal followed.
Standard of review
A motion for directed verdict is a challenge to the sufficiency of the evidence. Marshall
v. State, 94 Ark. App. 34, 223 S.W.3d 74 (2006). Evidence, direct or circumstantial, is
sufficient if it is substantial. Id. Substantial evidence is evidence forceful enough to compel
a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant
challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light
most favorable to the State. Id. This court will only consider evidence that supports the
verdict. Id.
Circumstantial evidence can support a finding of guilt in a criminal case if it excludes
every other reasonable hypothesis consistent with innocence. Ross v. State, 346 Ark. 225, 57
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S.W.3d 152 (2001). Whether circumstantial evidence excludes every hypothesis consistent
with innocence is for the factfinder to decide. Id. Upon review, an appellate court must
determine whether the factfinder resorted to speculation and conjecture in reaching its
decision. Id.
Argument
Appellant argues the trial court erred in denying his motion for directed verdict because
the State failed to prove that the alcohol concentration in his breath was eight-hundredths
(0.08) or more at the time he was driving. Arkansas Code Annotated section 5-65-103 (Repl.
2005) states as follows:
(a) It is unlawful and punishable as provided in this act for any person who is
intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be
in actual physical control of a motor vehicle if at that time the alcohol concentration
in the person’s breath or blood was eight-hundredths (0.08) or more based upon the
definition of breath, blood, and urine concentration in § 5-65-204.
Appellant contends that the State is obligated to prove each element of the offense
charged. He claims that under the evidence presented, it is not known what his breath or
blood-alcohol concentration was at the time of the alleged offense. He argues that the State’s
whole case rested on the Trooper’s probable-cause determination and two breath-test results
taken at 2:01 a.m. and 2:13 a.m. The results were ninety-nine-thousandths (0.099) and
ninety-six-thousandths (0.096) respectively. He claims this means that his alcohol level had
peaked from a lower concentration an hour before the test was taken. He maintains that to
conclude that his alcohol concentration an hour earlier was eight-hundredths (0.08) or above
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would depend upon suspicion or conjecture, and therefore, the trial court’s decision was not
based upon substantial evidence.
The State argues appellant’s claim that his alcohol level would have still been rising at
the time of the offense and could have been peaking at the time of the tests is unsupported by
any evidence about the changes in alcohol levels that occur after alcohol is consumed. We
agree. Pursuant to Ark. Code Ann. § 5-65-206(a)(1) (Repl. 2005), a presumption that the
defendant was not under the influence is established if, within four hours of the alleged offense,
an alcohol concentration of four-hundredths (0.04) or less is found in the defendant’s breath.
No presumption is made if the alcohol concentration found within four hours of the alleged
offense is between four-hundredths (0.04) and eight-hundredths (0.08). Ark. Code Ann. § 565-206(a)(2).
The State further argues that, under Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004),
the appellate court takes notice of the unquestioned laws of nature, mathematics, and physics;
and consistent with this principle, appellate courts have repeatedly observed that blood-alcohol
content decreases with the passage of time. However, in Porter, our supreme court pointed
out that the DWI statute provides two different ways to prove the offense of DWI: (1) proving
a blood-alcohol content greater than the limit provided in subsection (b), or (2) proving
intoxication under subsection (a). The Porter court affirmed the defendant’s conviction under
subsection (a) through the substantial evidence of his intoxication, which included a
one-vehicle accident and a strong odor of intoxicants on or about the defendant’s person at
the time. The court further stated as follows:
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Proof of the motorist’s blood-alcohol content is not necessary for a conviction of DWI
on the ground of intoxication. Stephens, 320 Ark. 426, 898 S.W.2d 435; Wilson v. State,
285 Ark. 257, 685 S.W.2d 811 (1985). However, such proof is admissible as evidence
tending to prove intoxication. Id.; Yacono, 285 Ark. 130, 685 S.W.2d 500. In deciding
whether there is substantial evidence of intoxication, this court takes notice of the
unquestioned laws of nature, mathematics, and physics. Stephens, 320 Ark. 426, 898
S.W.2d 435; 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. Stephens, 320 Ark. 426, 898 S.W.2d 435 (citing 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)).
Id. at 22, 145 S.W.3d at 379.
We do not rely on Porter for the proposition that the unquestioned laws of nature
compel a conclusion that appellant’s blood-alcohol content was decreasing or increasing at the
time of the breathalyzer tests.
However, under Ark. Code Ann. § 5-65-206(a)(1), the
breathalyzer test done well within two hours of the alleged offense is sufficient to establish
appellant’s alcohol concentration in his breath at the time of the offense. Moreover, like Porter,
the breathalyzer-test results are only one factor of many that the trial court considered when
he determined substantial evidence supported appellant’s conviction for DWI.
[1] Appellant did not pass the field-sobriety tests, he admitted having ingested
hydrocodone two hours before being stopped, and he admitted to having drunk alcohol
twenty minutes prior to the stop. Further, appellant’s breath smelled of alcohol, and he crossed
the center line twice. Finally, within two hours of the traffic stop, appellant’s breath-test
results were more than eight-hundredths (0.08). These facts alone are sufficient to support a
conviction of driving while intoxicated pursuant to Ark. Code Ann. § 5-65-103(a).
Accordingly, appellant’s conviction is affirmed based upon substantial evidence.
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Affirmed.
P ITTMAN, C.J., and B IRD, J., agree.
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