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LONG v. STATE11/5/1984
arning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223 (1951); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).
Second, a law is held to be vague when it leaves the police or the factfinder free to decide, without a fixed standard, what is prohibited. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). The definition of intoxicated, set out in 75-2502(a), is a sufficient standard for police enforcement and for ascertainment of guilt. We hold that 75-2503(a) of the act is not unconstitutionally vague.
Under the second subsection, 75-2503(b), intoxication is not an element of the offense. Driving with a blood alcohol content of .10% or more is the prohibited act. Stated differently, it is a violation per se to drive with a blood alcohol content of .10% or more. We have also held this subsection is not unconstitutionally vague. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Appellant next contends that the trial court committed error in allowing the police officer to testify that appellant was intoxicated because, he argues, that is the ultimate issue. There is no merit in the argument. Rule 704, Ark. Unif. Rules of Evid., 28-1001, et seq. provides:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The unmistakable trend of authority is to not exclude opinion testimony because it amounts to an opinion on the ultimate issue. Mathis v. State, 267 Ark. 904, 907, 591 S.W.2d 679, 681 (1979). While the opinion testimony in this case embraced the ultimate issue, it did not mandate a legal conclusion and there was no error in its admission. See Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).
For the benefit of bench and bar we comment on a matter not raised on appeal, and therefore not affecting this case, which relates to filing charges in cases of this nature. Appellant was charged with driving while intoxicated and with having had three prior convictions. Therefore, he was charged with a felony. See 75-2504(b)(3) (Supp. 1983). Yet, the charge was made in municipal court by a traffic ticket. An Information was not filed. The Constitution of Arkansas requires that felonies be charged by either information or indictment, art. 2, 8, amendment 21; Lovell v. State, supra. In addition, city attorneys cannot file felony charges and municipal courts are without jurisdiction to try felony cases.
Affirmed.
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