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Hunt v. State2/2/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Appellant Kenneth Hunt appeals his conviction for driving while intoxicated, first offense, for which he was sentenced to one day of incarceration and fined $258 plus court costs. He argues on appeal that there was insufficient evidence to convict him and that his appointed counsel was ineffective. We find no merit to his arguments and affirm his conviction.
We first address the sufficiency of the evidence, as we must. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State, or the appellee, and consider only that evidence tending to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
Arkansas Code Annotated section 5-65-103 (Repl. 1997) 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 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.
"Intoxicated" is defined by Ark. Code Ann. § 5-65-102(1) (Repl. 1997), which states:
(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[.]
Intoxication is often proven by use of a Breathalyzer machine. The chemical analyses of a person's blood, breath, urine or other bodily substance must be made by a method approved by the State Board of Health. Ark. Code Ann. § 5-65-204(b) (1987). Part D, § 3.40 of the Arkansas Regulations for Alcohol Testing (1995) provides in pertinent part:
A breath sample to be analyzed at a certified installation shall be collected only by certified personnel. The sample shall be collected only after the subject has been under observation for an uninterrupted period of no less than 20 minutes immediately prior to collection.
Only substantial compliance with health department regulations is required. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). The officer is not required to stare fixedly at the arrested person for the entire time in order to comply with the 20-minute regulation. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). Appellant challenges the sufficiency of the evidence to support his conviction only as to the State's proof that appellant was observed for an uninterrupted 20 minutes prior to administering the Breathalyzer test.
The following is a summary of the evidence, viewed in the light most favorable to the State. Appellant's vehicle was stopped on April 18, 1997, at 1:22 a.m. by a Marianna police officer. The stop was initiated because appellant crossed the
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