Hudgens v. State
| Decision Date | 15 April 1996 |
| Parties | Ralph Van HUDGENS, Appellant, v. STATE of Arkansas, Appellee. CR 95-971. |
| Court | Arkansas Supreme Court |
Appeal from Washington County Circuit Court; Hon. William Storey, Judge. No. CR 93-9.
Doug Norwood, Rogers, Appellant.
J. Brent Standridge, Asst. Atty. General, Little Rock, for Appellee.
The appellant, Ralph Van Hudgens, was convicted of DWI in a bench trial in circuit court. Hudgens contends the trial judge erred by 1) not suppressing all of the state's evidence and dismissing the charge, and 2) resentencing him to a harsher sentence upon retrial after his first conviction was reversed on appeal. We affirm the conviction, but agree that the trial judge erred in sentencing Hudgens and modify the sentence.
Ralph Van Hudgens was stopped by a Fayetteville police officer at approximately 2:00 a.m. on July 4, 1992, after the officer had observed Hudgens' vehicle swerving and repeatedly striking the curbside. The officer testified that Hudgens smelled of alcohol, and that he failed all of the field sobriety tests administered. Hudgens was arrested and taken to the police station, where he refused to take the breathalyzer test. Hudgens posted a bond, but was not released until 4:00 p.m. the following afternoon. Hudgens was convicted in the Fayetteville Municipal Court of DWI, first offense, and violation of the implied consent law. He appealed the conviction to Washington County Circuit Court and was again convicted of both offenses in a bench trial before Judge William Storey. He was sentenced by Judge Story to a $250.00 fine, ninety days suspension of his driver's license, and one day of jail time suspended.
Hudgens' conviction was reversed and his case remanded by the Court of Appeals for violation of his right to jury trial, in an opinion not designated for publication. He was retried by Judge Story on the DWI charge only, and was again convicted. He was sentenced by Judge Story to a $500.00 fine, ninety days suspension of his driver's license, and five days jail time.
Hudgens filed a motion to suppress all evidence and to dismiss the charges against him in municipal court and prior to both bench trials in circuit court. In his motion, he alleged that he was unlawfully held in custody, after he refused the breathalyzer test, in violation of certain statutes and rules of criminal procedure, and was thus prevented from gathering exculpatory information in violation of the United States and Arkansas Constitutions. In both bench trials, the trial court denied the motion as being untimely because it was filed less than ten days before the trial; in the second bench trial, the trial court also found that even if the motion was timely, Hudgens had failed to demonstrate prejudice.
On appeal, Hudgens first argues that the trial court erred in failing to suppress the State's evidence and to dismiss the charges against him. He further contends that the trial court incorrectly determined that his motion was untimely filed pursuant to Ark.R.Crim.Pro. 16.2, because the rule only applies to evidence illegally seized in violation of the Fourth, Fifth, and Sixth amendments. He contends that the police did not gather evidence illegally, but rather his unlawful detention for more than twelve hours after his arrest prevented him from having a blood test performed; he suggests that such a test could have provided "exculpatory evidence."
Arkansas Rule of Criminal Procedure 16.2 pertains to motions to suppress evidence and states in pertinent part:
(a) Objection to the use of any evidence, on the grounds that it was illegally obtained, shall be made by a motion to suppress evidence.
* * * * * *
(b) The motion to suppress shall be timely filed but not later than ten (10) days before the date set for the trial of the case, except that the court for good cause shown may entertain a motion to suppress at a later time.
We agree that Hudgens' motion does not pertain to the suppression of evidence illegally obtained, and is thus not governed by the ten-day limitation set forth in Rule 16.2(b). All of the evidence used in the trial of Hudgens for DWI was obtained at the scene of his arrest, and prior to his arrival at the police station where he alleges the violations took place. He asserts that because he was illegally detained in violation of various Arkansas statutes and rules, all the evidence submitted by the state should have been suppressed; Hudgens' arguments concerning statutory and rules violations are all without merit.
Hudgens first argues that he was not allowed to call an attorney or physician prior to his refusal to submit to the breathalyzer test, as required by Ark.Code Ann. § 16-85-101, which provides that "no prisoner shall be denied the right to consult an attorney of his own choosing or to call a physician of his own choosing if in need of one while confined to any prison in this state awaiting trial." Clearly, Hudgens cannot be characterized as a prisoner confined to prison awaiting trial by virtue of his DWI arrest. He further did not have the right to counsel before taking the breathalyzer test. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).
Hudgens also argues that the conduct of the officers after his arrest violated Ark.Code Ann. § 27-50-602, 603, 606, and 609, and that such violations also require suppression of all the evidence against him. Hudgens contends that he should have been immediately taken before a magistrate upon his arrest, as required by § 27-50-602, or that he should have been released from custody pursuant to § 27-50-603, which provides for a person not taken before a magistrate to post a bond and be forthwith released from custody.
Hudgens also asserts that because his driver's license was seized upon arrest, he should not have been required to post bond at all, pursuant to § 27-50-606. This section provides for deposit of driver's license in lieu of posting of bond. Hudgens further argues that because jail personnel set his bond, he was made to post a bond without seeing a judge in violation of Ark.R.Crim.P. 8.1, which requires that an arrested person not released by citation or...
To continue reading
Request your trial
-
Jolly v. State
...culpability, and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996). Based on the above discussion, I respectfully DICKEY, C.J., joins. ...
-
Butler v. State
...different sentencers assessed the varying sentences that McCullough received.” Id. at 140, 106 S.Ct. 976;see also Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996) (holding that the trial court failed to establish sufficient facts to overcome presumption of vindictiveness where the same......
-
McGill v. State
...distinguished from the power of our reviewing courts to modify a sentence or punishment deemed excessive or illegal. Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996). Much could be said about the origins and evolution of this authority; I will not attempt to do so, in the interest of h......
-
Winston v. State
...the assailant. Moreover, it is well settled law that an illegal arrest does not void a subsequent conviction. Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996): Moreover, Hudgens testified that he was detained for more than twelve hours before he was allowed a phone call and before he w......