Azbill v. State
| Decision Date | 04 March 1985 |
| Docket Number | No. CR,CR |
| Citation | 685 S.W.2d 162,285 Ark. 98 |
| Parties | O.D. AZBILL, Appellant, v. STATE of Arkansas, Appellee. 85-27. |
| Court | Arkansas Supreme Court |
Guy Jones, Jr., Conway, for appellant.
Steve Clark, Atty. Gen. by Joyce Rayburn Greene, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was convicted under the Omnibus DWI Act. The sole question raised in this appeal is whether the appellant was in actual physical control of his vehicle as required by Ark.Stat.Ann. § 75-2503 (Supp.1983). We find that he was.
The case was presented to the trial court on stipulated facts. The appellant did not testify. The stipulations were that Officer Leroy Davis was summoned by citizens band radio to U.S. Highway 67 at 6:22 p.m. on March 5, 1984, to investigate a truck which was stuck in the median of the highway. The truck belongs to the appellant. At the scene the officer found the appellant alone outside the truck. The appellant informed the officer that he was coming from Jonesboro and that he was the only person around the vehicle.
When the officer arrived, another car had stopped and its occupants were in the process of getting out and approaching the truck. Officer Davis was not able to testify as to the length of time the truck was stuck. He also did not know where the keys to the truck were when he arrived. The keys were available however because they were used to lock the truck, which was later towed and impounded. The truck was not locked when the officer arrived. Officer Davis never saw the appellant driving or exercising physical control of the truck. A breathalizer test was administered and the appellant registered .22%. The test results were properly certified and authenticated.
The parties further agreed that the only question before the trial court and on this appeal is whether or not the appellant was driving, or was in possession or in control, of the vehicle.
Act 549 of 1983, codified at Ark.Stat.Ann. § 75-2503 (Supp.1983) provides:
(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 there was 0.10% or more by weight of alcohol in the person's blood. [emphasis added].
Although the evidence that the appellant operated or was in actual physical control of the truck while intoxicated is circumstantial, the question of whether that evidence "excludes every other reasonable hypothesis is for the fact finder to determine." Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). This court's responsibility is to determine whether the verdict is supported by substantial evidence. Id.
We find that it was. We have recently discussed the issue of actual physical control of a vehicle in two cases. In Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984) we found the appellant was not in control where he was found asleep in his car with the motor off, in the driveway of a business and with the car keys in the vehicle seat. We said,
This case is distinguishable in that here, the appellant in his statement to the officer admitted that he was coming from Jonesboro and he was the only person around the vehicle. Therefore the court was justified in believing that he had operated and was in actual physical control of the truck until he became stuck on the median.
In Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), the appellant and a companion were found asleep in a parked vehicle. When the officers awoke them, the appellant reached for the key which was in the...
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Stephens v. State
...DWI, rather than a confession of the crime. Snyder v. City of DeWitt, 15 Ark.App. 277, 692 S.W.2d 273 (1985); see also Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985) (holding that appellant's admission to a law enforcement officer, at the scene of appellant's vehicle stuck in the highw......
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Cook v. State
...(2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). In the case at bar, Officer Canterbury testified that he never observed the appellant operating the vehicle; moreover, t......
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Bohanan v. State
...that he was in control of the car. Similarly, there was circumstantial evidence that the vehicle was operable. In Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985), the supreme court held there was circumstantial evidence that appellant had been operating his truck, which was stuck in the......
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State v. Reger, Docket No. 28,900 (N.M. App. 5/11/2010)
...between these two concepts raises a question as to whether the misdemeanor arrest rule has been violated. In Azbill v. State, 685 S.W.2d 162, 163-64 (Ark. 1985), the investigating officer encountered the intoxicated defendant standing alone outside his truck, which was stuck in the highway ......