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STATE v. JONES10/12/1992
conditions then present, including, but not limited to, starting or stopping a vehicle in such a manner that the tires lose traction and the vehicle swerves, or by accelerating unnecessarily so as to cause it to spin, producing noise or skidding, or both.
That is precisely what the state's testimony established and we are not persuaded that more is required. The trial court observed that it was late at night and there was no testimony that there was a disregard for persons, property, traffic controls or conditions. It is undisputed that the stop occurred between 9:00 and 9:30 p.m. in an area known as Cherokee Courts, but beyond that the record is silent as to the presence of other motorists, pedestrians or dwellings. We cannot agree, however, that it was the state's obligation under the ordinance to prove that appellee acted in disregard of persons or property. Appellee's proof was directed, not toward the ordinance, but to whether she had consented to the search, an issue the trial court did not reach. Appellee did not dispute the testimony that her tires spun and it was incumbent on her to establish grounds for the suppression
of the evidence seized by the state. See State v. Barter, 310 Ark. 94, 833 S.W.2d 382 (1992); Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979) and Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1977); Ark. R. Crim. P. 16.2(e).
It should be kept in mind that we are not dealing with guilt or innocence under the ordinance, merely with whether there was probable cause to conclude the ordinance had been violated; therefore, the trial court's refusal to discredit the testimony that appellee's tires squealed and her car swerved leaves but one question to be decided - whether the state must prove not only the offending conduct charged by the state, but that particular persons or property were affected thereby. We think not, anymore than that the state must prove that particular persons are affected by a blaring stereo in violation of an anti-noise ordinance, or that other motorists are jeopardized by one who is charged with driving while intoxicated. It is enough that the precepts of such ordinances are breached. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985) provides an analogue. Oliver, appealing from a conviction for DWI, argued that because under the Omnibus DWI Act of 1983 "intoxicated" is defined as a substantial impairment of a driver's reactions, motor skills and judgment, his conviction could not stand when the state failed to present evidence of his reactions, motor skills and judgment under normal conditions. We found no merit in the argument.
Appellee maintains that the ordinance is unconstitutionally vague, that due process requires adequate notice of what conduct is prohibited so that arbitrary and discriminatory enforcement is avoided. While those considerations may be pertinent where guilt or innocence is the issue, appellee has cited no authority which make them pertinent to probable cause proceedings, the purpose of which is merely to determine whether an officer has reasonable grounds to believe a crime has been committed. The proof in this case was essentially unchallenged that the appellee's driving came within the prohibition of the ordinance and, accordingly, there was probable cause to stop and investigate.
Reversed and Remanded.
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