Stephens v. State

• Decision Date: 08 May 1995
• Docket Number: No. CR,CR
• Parties: Dwayne Edward STEPHENS, Appellant, v. STATE of Arkansas, Appellee. 94-1411.
• Court: Arkansas Supreme Court

Page 435

898 S.W.2d 435

320 Ark. 426

Dwayne Edward STEPHENS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-1411.

Supreme Court of Arkansas.

May 8, 1995.

Doug Norwood, Rogers, for appellant

Vada Berger, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Dwayne Edward Stephens, appeals a judgment of the Washington County Circuit Court convicting him of driving while intoxicated, fining him $250.00 plus court costs, suspending his driver's license for ninety days, and sentencing him to serve thirty days in jail (conditionally suspended) and to attend the Ozark Guidance Center. Jurisdiction of this case is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(3). Appellant asserts two points for reversal. We find no error and affirm.

FACTS

The facts in this case are not disputed. Arkansas State Police Officer Robert Gibson was dispatched at approximately 3:57 p.m. on October 30, 1993 to the scene of a one-vehicle accident near Spring Valley. Gibson arrived on the scene at 4:25 p.m. and discovered an unattended smashed vehicle overturned on State Highway 412, which he later testified was a "very busy road." Gibson observed a half-full bottle of liquor in the vehicle. The vehicle's driver, Gibson later testified, was on his way to the hospital.

Gibson called Arkansas State Police Officer Larry Boone and instructed him to go to the hospital and, if alcohol appeared to be involved, to collect a sample from the driver for blood alcohol testing. The blood alcohol chemical test report later showed that appellant's blood sample was collected by Boone at 4:52 p.m. and contained 0.15% blood alcohol.

After clearing the highway accident scene, Gibson arrived at the hospital where he found appellant in bed being treated by a physician for injuries to his right arm. The physician told Gibson he could talk to appellant. In response to Gibson's questions, appellant identified himself, and stated he was the driver and owner of the vehicle, and had been drinking prior to driving. Both Gibson and Boone later testified that appellant smelled of intoxicants at the hospital.

Gibson stated: "I then after I got my information, I advised him that I would be arresting him in the room at that particular time." Gibson then "left out and let the doctor finish." When the medical treatment was finished, the treating physician told Gibson that appellant needed to go home and rest. Gibson and appellant walked to Gibson's vehicle where Gibson wrote out citations against appellant for DWI, driving left of center, and not wearing a seatbelt. Gibson then drove appellant home.

Appellant was convicted in the Springdale Municipal Court on January 14, 1994 of DWI, driving left of center and not wearing a seatbelt. He appealed to the Washington County Circuit Court, where, on April 21, 1994, a bench trial was held. Officers Gibson and Boone were the state's only witnesses. Appellant's blood alcohol test report was admitted into evidence without objection. The defense presented no evidence. The trial judge dismissed the driving left of center and no seatbelt charges for lack of proof, but found that appellant was guilty of DWI. The trial court's judgment and sentence was filed on August 3, 1994. This appeal arises therefrom.

SUFFICIENCY OF EVIDENCE

Appellant challenges the sufficiency of the evidence and asserts the state did not prove he was the operator of the vehicle involved in the accident, or that his blood alcohol level at the time of the accident was in excess of the legal limit.

Appellant first argues that the only evidence that he was the operator of the vehicle was his pre-arrest statement to Gibson that he was the driver. Appellant characterizes this statement as an out-of-court confession which was insufficient to support his conviction unless accompanied by other proof that the offense was committed. Ark.Code Ann. § 16-89-111(d) (1987). The state responds that appellant's statement did not amount to a confession and, thus, did not require corroboration. The state is correct.

We are relegated to the traditional meaning of the word "confession" as it is used in section 16-89-111(d), a provision which was added to our criminal code in 1868 without an emergency clause or other document descriptive of legislative intent. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). This court has stated " '[a] confession is an admission of guilt as to the commission of a criminal act.' " Id. at 307, 742 S.W.2d at 914 (quoting Workman v. State, 267 Ark. 103, 589 S.W.2d 20, 21 (1979)).

Appellant's statement that he was the driver of the vehicle is not an admission of guilt as to the commission of the criminal act of DWI because that crime is defined as the operation or actual physical control of a motor vehicle by a person who is intoxicated or whose blood alcohol level at that time is 0.10% or more by weight as determined by chemical test. Ark.Code Ann. § 5-65-103 (Repl.1993). The term "intoxicated," for purposes of this crime, is defined as follows:

(1) "Intoxicated" means 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.

Ark.Code Ann. § 5-65-102 (Repl.1993). Appellant's statement did not constitute a confession of DWI because it contains no admission that appellant was intoxicated or that his blood alcohol level was in excess of the legal limit at the time of the accident. Appellant's statement that he was the operator of the vehicle merely constituted an admission of one element of the offense of 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 highway median, that he had come from Jonesboro and was the only person around the vehicle was considered a confession of use and control of the vehicle, which, combined with other circumstantial evidence led to the logical conclusion that appellant was DWI). Even if appellant's statement that he was the driver of the vehicle is combined with his pre-arrest statement to Gibson that he was drinking prior to driving the vehicle, there is no confession of DWI because there is still no admission of intoxication or excessive blood alcohol level as defined by our criminal code. Therefore corroboration was not required.

Appellant's second challenge to the sufficiency of the evidence is his assertion that the only evidence that his blood alcohol level was 0.10% or more at the time of the accident was the blood alcohol test report which, he argues, was insufficient to sustain his conviction because no evidence was introduced to relate his blood alcohol level as tested to his blood alcohol level at the actual time of the accident. Therefore, appellant argues, his conviction should be reversed. We reject appellant's argument because we hold substantial evidence existed for the trial court to find that appellant was guilty of DWI on the ground of intoxication.

The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In deciding whether the evidence is substantial, the general rule is:

The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. [Citation omitted.] We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. [Citation omitted.] To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. [Citation omitted.]

Walker v. State, 313 Ark. 478, 481, 855 S.W.2d 932, 933 (1993) (quoting Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993)). In this case, the evidence and all reasonable inferences deducible therefrom are viewed in the light most favorable to the state as the party which is relying upon the evidence. Yacono, 285 Ark. 130, 685 S.W.2d 500.

Ark.Code Ann. § 5-65-206(a) (Repl.1993), the statute governing presumption of intoxication on the basis of chemical analysis of the defendant's blood, is silent in the situation where the test is taken more than two hours after the alleged offense or the test result reflects a blood alcohol content of 0.10% or more ¹. Subsection (b) of that statute states that the provisions of subsection (a) are not to be construed as limiting the introduction of any other relevant evidence bearing upon the issue of whether the motorist was intoxicated.

In deciding whether evidence is substantial, appellate courts take notice of the unquestioned laws of nature. 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. 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). In this case, it is undisputed that appellant's blood alcohol test sample was collected approximately fifty-five minutes after Gibson was initially dispatched to the accident scene. Because appellant's overturned vehicle was located in the middle of a busy highway, it is reasonable to infer that the accident was reported to the state...