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Elser v. State5/8/2003
Appellant Mark Elser was convicted of driving while intoxicated, first offense, after a jury trial in Crawford County Circuit Court. Elser appealed to the Arkansas Court of Appeals, arguing that the circuit court erred in denying his motion for mistrial where, during her opening statement, the prosecutor stated that Elser would testify. He also argued that the circuit court erred in refusing to allow Elser to present evidence of the results of a portable breath test (PBT). The court of appeals reversed the decision of the circuit court in Elser v. State, 79 Ark. App. 440, 89 S.W.3d 353 (2002). The State filed a petition for review of that decision, and we granted it, pursuant to Ark. Sup. Ct. R. 1-2(e). We affirm the circuit court and reverse the court of appeals.
Facts
On October 3, 2000, at approximately 3:21 a.m., Officer Cletus Hudson of the Van Buren Police Department noticed a red pickup truck parked on the side of the on-ramp to Interstate 540 in Van Buren. Hudson approached the vehicle and found the driver of the vehicle asleep in the front seat behind the steering wheel; the truck's motor was running. After Hudson knocked on the window of the vehicle several times, Elser awoke and opened the door of the vehicle. Hudson testified that he smelled a strong odor of alcohol when Elser opened the door.
Elser stepped out of the vehicle, and Hudson administered a PBT. Hudson testified that Elser "failed the test." Hudson also testified that Elser was unsteady on his feet, that Elser's eyes were bloodshot and watery, that Elser's speech was slurred, and that Elser had an odor of intoxicants about his person. Subsequently, Hudson administered field sobriety tests, including a horizontal gaze nystagmus test and "the finger to the nose test." Hudson testified, without objection, that Elser failed "all six points" of the horizontal gaze nystagmus test and that Elser "missed the tip of his nose with both hands." Hudson also stated that he attempted to administer the "one-legged stand" test; however, he did not administer that test because Elser told him that he was too tired to do it.
After administering the field sobriety tests, Hudson placed Elser under arrest and transported him to the Crawford County Jail to perform a breathalyzer test. The BAC Datamaster measured Elser's blood-alcohol content at .10%.
On November 6, 2000, Elser pleaded no contest in Van Buren Municipal Court to driving while intoxicated. Elser appealed to the Crawford County Circuit Court and, on May 15, 2001, a jury convicted Elser of driving while intoxicated, first offense. Elser was sentenced to a term of twenty-four hours in the county jail, a fine of $150.00, costs, and a ninety-day suspension of his driver's license.
The court of appeals reversed the circuit court in Elser v. State, 79 Ark. App. 440, 89 S.W.3d 353 (2002), holding that the circuit court erred in refusing to allow Elser to present evidence of the results of the PBT. In so holding, the court of appeals cited this court's holding in Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). The State filed a petition for review, which we granted.
When we grant a petition for review, we treat the appeal as if it were originally filed in this court. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002); Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002). Thus, we review the circuit court's judgment, not that of the court of appeals. Cook, supra.
Prosecutor's Opening Statement
Elser's first point on appeal is that the circuit court erred in denying his motion for mistrial where, during her opening statement, the prosecutor stated that Elser would testify during the
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