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Hilton v. State1/29/2003
intoxicated. See State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996) (court held that trial court erroneously granted directed verdict in favor of defendant on charge of driving while intoxicated, when officers testified that defendant had an odor of intoxicants, slurred speech, bloodshot eyes, and where defendant admitted to having had a few drinks); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992) (where court stated that officer's testimony that defendant smelled of alcohol, had red eyes, poor balance, and that he admitted to having consumed a couple of beers was sufficient to support conviction for driving while intoxicated). Given that the same quantum of proof is not necessary to support the finding of probable cause to arrest as is required to sustain a conviction, King v. State, supra, we conclude that Eremea's observations with regard to the smell of alcohol and Hilton's bloodshot eyes, in addition to Hilton's refusal to take the portable breath test and his admission that he had been drinking, is sufficient to sustain the trial court's ruling that there was probable cause to arrest Hilton for driving while intoxicated. In a related argument, Hilton contends that the trial court should have excluded the results of his breathalyzer test because the implied consent law did not apply in his situation. The version of Ark. Code Ann. § 5-65-202(a) (Repl. 1997) in effect at the time of Hilton's offense states:
(a) any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of Ark. Code Ann. § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person's blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or (3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.
Hilton argues that section 5-65-202(a)(3) did not apply because Eremea did not have reasonable cause to believe that he was intoxicated. However, as discussed above, Eremea's observations of the smell of alcohol and Hilton's bloodshot eyes, coupled with the fact that Hilton refused a portable breath test and admitted to Eremea that he had been drinking, were sufficient to constitute reasonable cause that he was intoxicated. Thus, the trial court's ruling denying Hilton's motion to suppress the breathalyzer results is not clearly against the preponderance of the evidence.
Affirmed.
Gladwin and Neal, JJ., agree.
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