Elam v. State, CR
| Decision Date | 03 June 1985 |
| Docket Number | No. CR,CR |
| Citation | 690 S.W.2d 352,286 Ark. 174 |
| Parties | James ELAM, Appellant, v. STATE of Arkansas, Appellee. 85-8. |
| Court | Arkansas Supreme Court |
Guy Jones, Jr., Conway, for appellant.
Steve Clark, Atty. Gen. by Jack Gillean, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was found guilty of violating the Omnibus DWI Act of 1983. We affirm the conviction. The appeal comes to this Court under Rule 29(1)(c).
On June 18, 1983, Trooper Simes of the Arkansas State Police was dispatched to investigate an accident near Vilonia. Upon arriving at the scene of the accident, he found appellant's overturned vehicle with beer cans inside and outside. Appellant's bloodshot eyes were "kinda out of control." Appellant was taken to the nearest hospital and, while there, told the trooper that he was the only person in the car at the time of the accident and that the accident occurred because he had missed a curve. The trooper concluded that appellant had been drinking and, as soon as appellant was discharged from the hospital, took him to the police station for a breath test. The result of the test was 0.15% blood alcohol content.
While the trooper did not actually see appellant operate the vehicle, the confession coupled with the recited facts constitute substantial evidence from which the jury could find that appellant was in actual control of the vehicle.
Appellant argues that there was no reasonable cause to require him to submit to the breath test. See Ark.Stat.Ann. § 75-1045(a)(3) (Supp.1983). We find no merit in the argument. The manner in which the accident occurred, the beer cans, and appellant's appearance supplied ample cause for the officer to require the breath test.
Last, appellant argues that the breath test was not administered for more than two hours after the accident, and the result of the test was not admissible in evidence. As authority for his argument appellant cites Ark.Stat.Ann. § 75-1031.1 (Supp.1983). That statute does not provide an unqualified exclusionary rule of evidence for tests administered more than two hours after a person is arrested for driving while intoxicated. Instead, it provides that if the test is administered within two hours of the arrest and the test shows that the defendant has a blood alcohol content of 0.05% or less he shall be presumed not to be under the influence of alcohol. If the defendant has a blood alcohol content in excess of 0.05% but less than 0.10% there should be no...
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...with Officer Canterbury's detection of the odor of alcohol supplied ample cause for requiring the breath test. See Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). Therefore, we hold that the trial court did not err in allowing the introduction of the test Reversed and Remanded. COOPER a......
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