Porter v. State

• Decision Date: 05 February 2004
• Docket Number: No. CR 03-819.,CR 03-819.
• Citation: 145 S.W.3d 376,356 Ark. 17
• Parties: Justin PORTER v. STATE of Arkansas.
• Court: Arkansas Supreme Court

145 S.W.3d 376

356 Ark. 17

Justin PORTER v. STATE of Arkansas.

No. CR 03-819.

Supreme Court of Arkansas.

February 5, 2004.

Appeal from the Circuit Court, Baxter County, Robert McCorkindale, J Osmon & Ethredge, by: David L. Ethredge, Mountain Home, for appellant.

Mike Beebe, Att'y Gen., by: David J. Davies, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Justin Porter was convicted in the Baxter County Circuit Court of driving while intoxicated (DWI), third offense, and sentenced to twelve months in the county jail, with all but sixty days suspended. Porter was also placed on supervised probation for one year and ordered to pay a fine and court costs totaling $1,800. He appealed to the Arkansas Court of Appeals, which reversed his conviction for insufficient evidence. See Porter v. State, 82 Ark.App. 589, 120 S.W.3d 178 (2003). We granted the State's petition for review of this decision, pursuant to Ark. Sup. Ct. R. 2-4. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003); Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We affirm the judgment of conviction.

The record reflects that on May 20, 2001, around 6:30 a.m., Porter was involved in a one-vehicle accident, for which he was charged with DWI. Porter initially pled guilty in the district court in Mountain Home. He then appealed to the Baxter County Circuit Court, where he was tried by the bench. At trial, the prosecutor presented testimony from Trooper Jim Brown, of the Arkansas State Police, and Deborah Williams, director of laboratory services at Baxter Regional Hospital.

Trooper Brown testified that he arrived on the scene as Porter was being attended to by emergency medical technicians. While there, Porter told Brown that he was the only occupant of the vehicle and that the wreck had occurred as he was on his way to work. At that time, Brown smelled a strong odor of intoxicants coming from Porter. Porter was subsequently taken to the hospital, where he was treated for his injuries. While there, around 9:00 a.m., Trooper Brown arranged for blood to be drawn from Porter by a lab technician. The blood was later sent to the Arkansas State Crime Laboratory, where it was determined to show a blood-alcohol content of 0.05%. When asked by the prosecutor whether anything had occurred at the hospital that might have reduced Porter's blood-alcohol content, Brown stated that he believed that Porter had been given fluids during his treatment.

Williams testified that on the date of the accident, blood had been drawn from Porter on a physician's order, at around 7:00 a.m. That sample was later tested at the hospital, where it was determined that the blood-alcohol content was 0.0904%. The hospital's blood test was admitted into evidence without objection.

After the prosecution rested, defense counsel made a motion to dismiss on the ground that the prosecution had failed to prove that Porter was intoxicated at the time of the accident. Counsel argued that Porter's blood-alcohol content was less than the legal limit at the time, 0.10%, even considering the earlier test showing an alcohol content of 0.0904%. The trial court denied the motion, and the defense then rested. Thereafter, the trial court found Porter guilty of DWI.

On appeal, Porter argues that the evidence is insufficient to prove that he was intoxicated under the Omnibus DWI Act. Chiefly, he argues that the evidence was insufficient because (1) neither blood test showed a blood-alcohol content of 0.10% or more, and (2) there was no additional evidence, apart from the fact of his wreck, to show that he was intoxicated at the time. He also argues that the trial court erred in admitting into evidence the test performed by the hospital, as he contends that the test was not done in compliance with the procedures set out in Ark. Code Ann. § 5-65-204 (Repl.1997). This second argument may be summarily disposed of, as it was not preserved below. This court has consistently refused to hear arguments raised for the first time on appeal. See, e.g., Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003); Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). We turn then to the remaining point on appeal.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. If material and relevant evidence is not in dispute or there is a conflict in the evidence to the extent that fair-minded persons might draw different conclusions therefrom, the evidence is substantial. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only that evidence tending to support the verdict. Johnson, 337 Ark. 196, 987 S.W.2d 694.

At the time of Porter's accident, Ark. Code Ann. § 5-65-103 (Repl.1997)¹ provided:

(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 one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood as determined by a chemical test of the person's blood, urine, breath, or other bodily substance.

This court has consistently recognized that this 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). See, e.g., State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995); Yacono, 285 Ark. 130, 685 S.W.2d 500.

In the present case, the court of appeals erroneously held: "In order to convict, the State must prove all elements under both subsections of Ark.Code Ann. § 5-65-103." Porter, 82 Ark.App. at 594-95, 120 S.W.3d at 181 (citing Neble v. State, 26 Ark.App. 163, 762 S.W.2d 393 (1988)). However, a close examination of Neble reveals that the court of appeals misinterpreted that holding. In Neble, the appellant was charged under subsection (a) of section 5-65-103. On appeal, he challenged the sufficiency of the evidence to convict him. The Neble court held that under subsection (a):

The state must prove beyond a reasonable doubt every element of the crime charged. Therefore, the state must prove not only that appellant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated.

Id. at 166-67, 762 S.W.2d at 395 (citation omitted). Clearly, this holding does not support the court of appeals' position in this case that the State is required to prove all elements under both subsections of section 5-65-103.

In the present case, the State did not present evidence showing that Porter had a blood-alcohol content of 0.10% or greater. As such, there was not substantial evidence to convict Porter under section 5-65-103(b). The question then is whether there was substantial evidence to convict under subsection (a). Viewing the evidence in a light most favorable to the State and considering only that evidence that supports the verdict, we conclude that there is substantial evidence that Porter was intoxicated and that he was operating a vehicle while intoxicated.

"Intoxicated" is defined in Ark. Code Ann. § 5-65-102(1) (Repl.1997) as meaning:

influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians[.]

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)).

The evidence in this case demonstrated that Porter was involved in a one-vehicle accident at around 6:30 a.m. Trooper Brown testified that when he spoke with Porter at the scene of the accident, Porter stated that he had been the only occupant of the vehicle at the time. Thus, by Porter's own admission, he was operating or in actual physical control of the vehicle at the time of the crash. Trooper Brown also testified that Porter had a strong odor of intoxicants on or about his person while the officer spoke with him at the crash site. Shortly thereafter, Porter was transported to the hospital, where blood was drawn pursuant to a physician's orders around 7:00 a.m. The sample was tested at...