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Porter v. State2/5/2004
part:
(a) In any criminal prosecution of a person charged with the offense of driving while intoxicated, the amount of alcohol in the defendant's blood at the time or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following:
(1) If there was at that time one-twentieth of one percent (0.05%) or less by weight of alcohol in the defendant's blood, urine, breath, or other bodily substance, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
(2) If there was at the time in excess of one-twentieth of one percent (0.05%) but less than one-tenth of one percent (0.10%) by weight of alcohol in the defendant's blood, urine, breath or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
Porter's argument on this point fails to take into account the blood test that was drawn some thirty minutes after the wreck, which showed a blood-alcohol content of 0.0904%, and Trooper Brown's testimony that Porter had been given fluids prior to the time that the second blood sample was drawn. Variances and discrepancies in the proof go to the weight or credibility of the evidence, and it is for the factfinder to resolve any conflicts and inconsistencies. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998); State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Where, as here, the trial is before the bench, the trial judge sits as factfinder. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000); Gray v. State, 311 Ark. 209, 843 S.W.2d 315 (1992). The trial judge in this case obviously resolved the conflicting evidence in favor of the State, and we will not substitute our own resolution for his. Accordingly, we affirm the circuit court's judgment of conviction, and we reverse the decision of the court of appeals.
Thornton, J., dissents.
Hannah, J., not participating.
Ray Thornton, Justice, dissenting.
Because I believe that the odor of intoxicants following a single-car accident considered together with a blood-alcohol level below the legal limit is not sufficient to support a conviction of DWI, Third Offense, I respectfully dissent.
In reviewing a criminal case challenged for want of sufficient evidence, this court will not reweigh evidence, but rather determines whether the evidence at trial was substantial enough to support the conviction, or whether the evidence was forceful enough to compel reasonable minds to reach a conclusion one way or the other without resort to speculation or conjecture. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002) (emphasis added). We only consider evidence in a light favorable to the appellee and only evidence that supports the conviction. Id.
Mr. Porter was convicted under Ark. Code Ann. § 5-65-103 (Supp. 1999), which provides the State with two alternate methods of proving the offense of driving while intoxicated. At the time of the offense, Ark. Code Ann. § 5-65-103(b) made it illegal for someone to operate a motor vehicle if a blood-alcohol test showed one-tenth of one percent (0.10%) or greater alcohol by weight in the bloodstream. Mr. Porter did not show 0.10% or greater alcohol by weight in his bloodstream. The blood-alcohol test administered by the hospital thirty minutes after the one-vehicle wreck showed 0.0904% alcohol
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