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COOK v. STATE1/22/1992
The appellant in this criminal case was convicted of DWI in El Dorado Municipal Court. He appealed to circuit court and, after a de novo bench trial, was found guilty of DWI, first offense; sentenced to 120 days in jail with 119 suspended; fined $300 plus costs; ordered to attend a DWI program; and had his driver's license suspended for ninety days. From the decision, comes this appeal.
For reversal, the appellant asserts that there was insufficient evidence to support a finding that he was in control of the vehicle, and that the trial court erred in denying his motion to suppress the results of a breathalyzer test. We agree with the appellant's first contention, and we reverse and remand.
As required by the Arkansas Supreme Court's decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), when there is a challenge to the sufficiency of the evidence, the appellate court is required to review that point prior to considering any alleged trial error. See Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the State and affirm if there is any substantial evidence to support the trial court's judgment. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). To be substantial, the
evidence must be of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must induce the mind to go beyond mere suspicion or conjecture. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986).
Viewed in the light most favorable to the appellee, the evidence shows that Officer Terry Canterbury of the El Dorado Police Department was dispatched to investigate a one-vehicle accident on July 15, 1989. When he arrived at the scene, Officer Canterbury observed that an automobile had struck a tree after crossing a set of railroad tracks. He first assessed the damage to the automobile and, while doing so, noticed an odor of alcohol in the vehicle. Officer Canterbury then walked over to a group of people which included the appellant, the appellant's girlfriend, and two other people who were helping them. Suspecting that alcohol might be involved in the accident, Officer Canterbury noticed that the appellant had an odor of alcohol on his breath, had a flushed appearance, and spoke rapidly in response to the officer's questions. Officer Canterbury stated that, once he detected the odor of alcohol on the appellant's breath, the appellant was not free to leave although he had not yet been formally arrested. Officer Canterbury also stated that he asked the appellant if he had been driving the car, and that the appellant admitted that he had been driving when the accident occurred. However, at trial the appellant moved in limine to suppress the statements given to Officer Canterbury on the grounds that he had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) and the trial court granted the motion. On cross-examination, Officer Canterbury stated that he never saw the appellant drive the automobile.
[1, 2] Under Ark. Code Ann. 5-65-103 (a) (1987), it is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle. Operation of a motor vehicle may be proven by (1) observation of the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). In the case at bar, Officer Canterbury testified that he never observed the appellant operating the vehicle; moreover, there was no evidence to show that the appellant intended to drive after the momen
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