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Porter v. State2/5/2004
by weight in Mr. Porter's bloodstream.
The second method is to prove that the operator of a motor vehicle was intoxicated under Ark. Code Ann. § 5-65-103(a). The State may use the results of a blood-alcohol test between 0.05% but less than 0.10% as evidence of intoxication to be evaluated with all other evidence at trial. Ark. Code Ann. § 5-65-206 (Supp. 1999). The other evidence used to convict Mr. Porter was that he was involved in a one-vehicle wreck and that Trooper Brown smelled intoxicants on Mr. Porter. The majority assumes that the one-vehicle wreck as Mr. Porter was driving to work at 6:30 a.m. was evidence of intoxication. Here, there was no evidence as to possible causes of the accident. Did a tire blow out? Did the brakes fail? Did the steering tie rods break? Did the driver fall asleep? We do not know the answer to these questions because no evidence was introduced as to the cause of the accident. To infer that intoxication was the cause is purely speculation. Moreover, the majority acknowledges that a one-vehicle wreck is not sufficient evidence on its own to support the conviction. Viewing evidence in a light most favorable to the State does not mean that we should engage in speculation or add evidence that was not presented at trial. There was no evidence as to the cause of this wreck, and it is pure conjecture to consider the one-vehicle accident as showing intoxication of Mr. Porter.
Trooper Brown testified that he smelled a strong odor of intoxicants on Mr. Porter. I do not believe the smell of intoxicants alone should be enough to support a criminal conviction, though it was sufficient to justify a request for a blood-alcohol test. A spilled beer on the clothing he had worn the previous evening might have presented a strong odor. Of course, it is entirely proper to consider evidence offered by an investigating officer to support a charge of intoxication. In State v. Johnson, 326 Ark. 189, 964 S.W.2d 760 (1996), we held that testimony from two law enforcement officers that the appellant appeared and acted intoxicated, had glassy or bloodshot eyes, slurred speech, and smelled of intoxicants was sufficient. Id. Here, Trooper Brown never testified that Mr. Porter appeared to be intoxicated. There was no evidence that he had glassy and bloodshot eyes, slurred speech, or failed any field sobriety tests because there is no showing that such criteria were considered. In Johnson, supra, the defendant refused to cooperate with the law enforcement officers when they attempted to administer field-sobriety tests. Trooper Brown did not attempt any field-sobriety tests in this case. The smell of alcohol by itself was not enough to prove that Mr. Porter was legally intoxicated.
In summary, there was a one-vehicle wreck with no evidence as to the cause of this wreck. There was a showing that Mr. Porter remained below the legal blood-alcohol limit thirty minutes after the wreck. There was also a showing that Mr. Porter had the odor of intoxicants about him. It requires more than viewing the evidence in a light most favorable to the State to conclude that such evidence is sufficient to uphold a conviction for DWI, Third Offense.
For the foregoing reasons, I respectfully dissent.
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