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Porter v. State2/5/2004
Appellant Justin Porter was convicted in the Baxter County Circuit Court of driving while intoxicated (DWI), third offense, and sentenced to twelve months in the county jail, with all but sixty days suspended. Porter was also placed on supervised probation for one year and ordered to pay a fine and court costs totaling $1,800. He appealed to the Arkansas Court of Appeals, which reversed his conviction for insufficient evidence. See Porter v. State, ___ Ark. App. ___, 120 S.W.3d 178 (2003). We granted the State's petition for review of this decision, pursuant to Ark. Sup. Ct. R. 2-4. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003); Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We affirm the judgment of conviction.
The record reflects that on May 20, 2001, around 6:30 a.m., Porter was involved in a one-vehicle accident, for which he was charged with DWI. Porter initially pled guilty in the district court in Mountain Home. He then appealed to the Baxter County Circuit Court, where he was tried by the bench. At trial, the prosecutor presented testimony from Trooper Jim Brown, of the Arkansas State Police, and Deborah Williams, director of laboratory services at Baxter Regional Hospital.
Trooper Brown testified that he arrived on the scene as Porter was being attended to by emergency medical technicians. While there, Porter told Brown that he was the only occupant of the vehicle and that the wreck had occurred as he was on his way to work. At that time, Brown smelled a strong odor of intoxicants coming from Porter. Porter was subsequently taken to the hospital, where he was treated for his injuries. While there, around 9:00 a.m., Trooper Brown arranged for blood to be drawn from Porter by a lab technician. The blood was later sent to the Arkansas State Crime Laboratory, where it was determined to show a blood-alcohol content of 0.05%. When asked by the prosecutor whether anything had occurred at the hospital that might have reduced Porter's blood-alcohol content, Brown stated that he believed that Porter had been given fluids during his treatment.
Williams testified that on the date of the accident, blood had been drawn from Porter on a physician's order, at around 7:00 a.m. That sample was later tested at the hospital, where it was determined that the blood-alcohol content was 0.0904%. The hospital's blood test was admitted into evidence without objection.
After the prosecution rested, defense counsel made a motion to dismiss on the ground that the prosecution had failed to prove that Porter was intoxicated at the time of the accident. Counsel argued that Porter's blood-alcohol content was less than the legal limit at the time, 0.10%, even considering the earlier test showing an alcohol content of 0.0904%. The trial court denied the motion, and the defense then rested. Thereafter, the trial court found Porter guilty of DWI.
On appeal, Porter argues that the evidence is insufficient to prove that he was intoxicated under the Omnibus DWI Act. Chiefly, he argues that the evidence was insufficient because (1) neither blood test showed a blood-alcohol content of 0.10% or more, and (2) there was no additional evidence, apart from the fact of his wreck, to show that he was intoxicated at the time. He also argues that the trial court erred in admitting into evidence the test performed by the hospital, as he contends that the test was not done in compliance with the procedures set out in Ark. Code Ann. § 5-65-204 (Repl. 1997). This second argument may be summarily disposed of, as it was not preserved below. This
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