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Ormsby v. State11/2/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Daniel M. Ormsby was convicted in a bench trial of driving while intoxicated, second offense, and sentenced to fourteen days in jail and a fine of $500 with $200 suspended. On appeal, Ormsby's sole argument is that the evidence was insufficient to sustain his conviction. Specifically, Ormsby argues that the State failed to prove that he was intoxicated. We affirm.
State Patrol Officer Kip Stringer arrested Ormsby on the evening of April 4, 2003. Stringer testified that, on this date, he was on routine patrol on U.S. Highway 65, when he noticed a truck with one headlight out traveling south and turning onto Highway 95. Stringer testified that he stopped the truck because of the headlight and not because of the behavior of the driver. The driver, Ormsby, pulled over into a driveway just off the highway. Ormsby explained to Stringer that the passenger in the car was a friend that he was driving home because the friend had too much to drink. According to Stringer, there was an odor of alcohol coming from Ormsby. Stringer testified that Ormsby admitted to some drinking earlier in the evening.
Stringer asked Ormsby to step out of the truck and take a field sobriety test. Stringer testified that Ormsby said, "Don't do this to me," and he made other statements about not wanting to go through with the sobriety tests. Stringer asked Ormsby to take three field sobriety tests. Stringer testified that he was trained to do field sobriety tests and to notice different clues as indicators of intoxication. The first test was the "finger touch" test, which is not recognized by the Arkansas Law Enforcement Training Academy as a standard field sobriety test. According to Stringer, Ormsby could not touch his fingertips as he counted.
The second test was the "walk-and-turn" test. Stringer testified that Ormsby did not take short steps when making the turn, that he began walking before instructed to do so, and that he stumbled a few times on the gravel driveway. Stringer stated that the lighting on the driveway was the flashing blue lights of his patrol car, and Stringer was not sure whether the headlights of the vehicles provided any light at the time of the tests. The third test involved Ormsby standing on one leg and counting. According to Stringer, Ormsby put one hand on Stringer to balance himself during the test, and he also began this test before being instructed to do so.
After the field sobriety testes, Stringer attempted to administer a portable breath test to Ormsby. Ormsby did not blow hard enough into the machine to get a good reading. Stringer testified that Ormsby told him that he had emphysema, which prevented him from blowing hard into the machine. According to Stringer, Ormsby failed the sobriety tests, smelled of alcohol, and had bloodshot eyes and slurred speech. Stringer then arrested Ormsby and transported him to the sheriff's office. At the sheriff's office, Stringer advised Ormsby of his rights regarding the Breathalyzer test. Ormsby signed the rights form and again told Stringer that he had emphysema. Once again, Ormsby was not able to give a satisfactory sample during the Breathalyzer test. Stringer did not charge Ormsby with the refusal of the test because, according to Stringer, he gave Ormsby the "benefit of the doubt" regarding his statement that he had emphysema. At the district court trial, Ormsby testified that a doctor had never diagnosed him with emphysema and that he had never seen a doctor for this condition.
Investigator Bobby Lockard of the Van Buren County Sheriff's Office testified that he stopped to see if Stringer needed any assistance with the traffic stop. Lockard tended to th
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