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Ormsby v. State11/2/2005
e passenger in the vehicle and observed part of the field sobriety tests and the portable breath test. According to Lockard, Ormsby could not blow hard enough for the breath test. Lockard noticed an odor of alcohol on Ormsby. Lockard also witnessed the Breathalyzer test given to Ormsby at the sheriff's office. According to Lockard, Ormsby could not give a sufficient breath for a sample, and he still smelled of alcohol.
Brandy Enloe, an administrator at the sheriff's office, testified that she was present when Ormsby attempted to take the Breathalyzer test in the office. According to Enloe, Ormsby agreed to take the test, but he could not give a sufficient sample. Enloe was not close enough to Ormsby to observe any smell of alcohol or behavior indicative of intoxication.
Ormsby made a motion to dismiss, arguing that the State failed to prove that he was intoxicated. The trial court found Ormsby guilty of driving while intoxicated.
In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in a light most favorable to the State and considers only evidence that supports the verdict. O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004). A conviction will be affirmed if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Id.
Pursuant to our DWI statute, a person violates the law by either operating a motor vehicle while intoxicated or operating a motor vehicle with a blood-alcohol content of eight-hundredths (0.08) or more. Ark. Code Ann. § 5-65-103 (Supp. 2003). Intoxication is defined as:
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.
Ark. Code Ann. § 5-65-102 (Repl. 1997). The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003) (citing Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999)). Opinion testimony regarding intoxication is admissible. Id. The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant's fear of the results of the test and the consciousness of guilt. Id.; Etheredge v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 9, 2005) (holding that even when refusal to submit is not charged, evidence of refusal is relevant to show consciousness of driving while intoxicated).
Here, Ormsby failed the field sobriety tests. Both Lockard and Stringer testified that they smelled intoxicants on Ormsby's person. Stringer opined that he believed Ormsby was intoxicated. Stringer noticed that Ormsby had bloodshot eyes and slurred speech. Ormsby initially resisted the field sobriety tests by stating, "Don't do this to me." The foregoing evidence is sufficient to prove Ormsby was intoxicated. Moreover, Ormsby refused to provide an adequate breath sample for a Breathalyzer test, stating the unsubstantiated excuse that he suffered from emphysema.
Affirmed.
Griffen and Vaught, JJ., agree.
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