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Hillery v. State12/3/2003
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
William Hillery appeals from his conviction for driving while intoxicated (DWI). He presents three arguments, asserting that the trial court erred in denying his motion for a directed verdict, denying his motion to exclude the police officer's testimony regarding the horizontal gaze nystagmus test, and denying his motion to suppress. We find no error and affirm.
Arkansas State Trooper David Forthman observed appellant's Ford one-ton truck parked on the entrance ramp of Interstate 30 with its motor running. The ramp is marked with "No Parking" signs. As Forthman approached the truck, he saw appellant slumped down in the driver's seat. The officer knocked on the driver's side window several times in an effort to arouse appellant. When appellant awoke and rolled down his window, Forthman smelled a strong odor of alcohol.
The officer questioned appellant, who admitted that he had been driving from Prescott, Arkansas, and was en route to Little Rock, Arkansas. The officer then asked appellant to exit the truck. Forthman administered the horizontal gaze nystagmus test (HGN test) on appellant, which tracks the steadiness of the flow of one's eyes as they follow a fingertip or a pen; jerking of the eyes is indicative of intoxication. According to Forthman, appellant's eyes were "continuously jerking." Forthman testified that because appellant's balance was very unsteady and because appellant appeared to be confused, he felt it was unsafe for appellant to attempt additional field tests.
Forthman arrested appellant for suspicion of DWI and inventoried his vehicle. The officer found an insulated mug in the front console that was full of ice and smelled of alcohol mixed with soda. At this point, Forthman escorted appellant to the sheriff's office, where Deputy Jason Watson administered a breathalyzer test. The test revealed that appellant's blood-alcohol content was .312; under Arkansas law, it was a violation to drive with a blood-alcohol content of .10 or greater.
Appellant was charged with DWI and requested a jury trial. Prior to the trial, he filed a motion-in-limine to exclude Forthman's testimony regarding the HGN test. Appellant argued that HGN testing is unreliable and does not meet the requirements for admitting novel scientific evidence under Arkansas law. He also filed a motion to suppress the evidence, arguing that Forthman had no probable cause to approach his vehicle. The trial court, without a hearing, denied appellant's motions. During the trial, appellant renewed all of his previously filed motions and moved for a directed verdict; the court again denied his motions. A jury convicted appellant and sentenced him to serve one day in jail and to pay a $1,000 fine. This appeal followed.
I. Sufficiency of the Evidence
For double-jeopardy reasons, we first consider appellant's challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Breedlove v. State, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Breedlove v. State, supra.
Appellant argues that the evidence does not support his conviction because the sole evidence regarding his blood-alcohol level was unre
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