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Porter v. State2/5/2004
evidence in a light most favorable to the State and considering only that evidence that supports the verdict, we conclude that there is substantial evidence that Porter was intoxicated and that he was operating a vehicle while intoxicated.
"Intoxicated" is defined in Ark. Code Ann. § 5-65-102(1) (Repl. 1997) as meaning:
influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians[.]
Proof of the motorist's blood-alcohol content is not necessary for a conviction of DWI on the ground of intoxication. Stephens, 320 Ark. 426, 898 S.W.2d 435; Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). However, such proof is admissible as evidence tending to prove intoxication. Id.; Yacono, 285 Ark. 130, 685 S.W.2d 500. In deciding whether there is substantial evidence of intoxication, this court takes notice of the unquestioned laws of nature, mathematics, and physics. Stephens, 320 Ark. 426, 898 S.W.2d 435; Yacono, 285 Ark. 130, 685 S.W.2d 500. Consistent with this principle, this court has repeatedly observed that blood-alcohol content decreases with the passage of time. Stephens, 320 Ark. 426, 898 S.W.2d 435 (citing State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985)).
The evidence in this case demonstrated that Porter was involved in a one-vehicle accident at around 6:30 a.m. Trooper Brown testified that when he spoke with Porter at the scene of the accident, Porter stated that he had been the only occupant of the vehicle at the time. Thus, by Porter's own admission, he was operating or in actual physical control of the vehicle at the time of the crash. Trooper Brown also testified that Porter had a strong odor of intoxicants on or about his person while the officer spoke with him at the crash site. Shortly thereafter, Porter was transported to the hospital, where blood was drawn pursuant to a physician's orders around 7:00 a.m. The sample was tested at the hospital's lab and revealed a blood-alcohol content of 0.0904%, which is just under the legal limit in effect at the time. It is reasonable to infer from this evidence that Porter's blood-alcohol level at the time of the crash was above 0.0904%. It is likewise reasonable to infer that Porter was intoxicated at the time of the accident, given his blood-alcohol content and the facts that he was in a one-vehicle accident and had a strong odor of intoxicants on or about his person at the time.
We disagree with both Porter and the court of appeals that substantial evidence of intoxication requires proof of glassy, watery eyes, slurred speech, or some other physical impairment, beyond the evidence that Porter's driving ability was impaired to the extent that he was involved in a one-vehicle wreck. While we agree that evidence of a one-vehicle wreck, standing alone, is not substantial evidence of intoxication, we conclude that this evidence of driving impairment coupled with the evidence of Porter's blood-alcohol level and the strong odor of intoxicants is substantial evidence of intoxication.
We also disagree with Porter's argument that he was entitled to a presumption that he was not intoxicated, based on the test that showed his blood-alcohol content to be 0.05%. He relies on Ark. Code Ann. § 5-65-206 (Supp. 1999), which, at the time of his accident, provided in pertinent
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