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Anderson v. State9/28/2005
The Lonoke County Circuit Court found Vincent Wayne Anderson guilty of possession of cocaine, driving while intoxicated (first offense), speeding, and possession of drug paraphernalia. He was sentenced to serve three years' imprisonment. Appellant argues that the trial court erred in denying his directed-verdict motion on the charge of possession of cocaine because there was insufficient evidence to convict him and that the trial court erred in considering the results from the BAC DataMaster regarding his DWI charge because the machine was not properly certified pursuant to Ark. Code Ann. § 5-65-206(d)(2) (Supp. 2001). We affirm.
On September 19, 2003, at approximately 7:15 p.m., Officer Ricky Denton with the Arkansas State Police was patrolling Interstate-40 when his radar indicated that the vehicle being driven by appellant was traveling at 83 miles per hour in a 70-mph zone. Officer Denton stopped the vehicle and made contact with appellant and his female passenger. Appellant presented a car rental agreement for the officer's inspection, and according to the agreement, the Dodge Intrepid had been rented from a rental agency in Little Rock only three hours prior to the stop. Officer Denton testified that, while he was standing beside the car, he smelled a strong odor of intoxicants, including marijuana. When he asked appellant to step out of the car, appellant was unsteady on his feet. Officer Denton also noticed that appellant's eyes were bloodshot. According to Officer Denton, appellant's speech was slurred as he identified his passenger, who held a mixed drink in her hand and had an open can of beer sitting between her legs.
In a search of the rental car, Officer Denton found a "roach" in the ashtray and several "seeds" strewn on the floorboard. He also found a box cutter, which is an instrument that can be used for cutting drugs. In the pocket of the driver's door, Officer Denton found a folded piece of cardboard that had been cut from a beer box that was on the backseat of the car. The cardboard contained what was later determined to be cocaine residue. Officer Denton flipped down the sun visor on the driver's side and found two twenty-dollar bills, a pack of Tops rolling paper, and a blue scratch piece of rolled-up paper. Inside the rolling paper were several small pieces and one large piece of rock cocaine.
Following appellant's arrest, he was taken to the Carlisle Police Department where Officer Denton administered field sobriety tests, including the horizontal gaze nystagmus, a simple walk and turn, and the one-leg stand. After appellant failed all three tests, he was asked to take a Breathalyzer test.
Officer Melissa Burns with the Carlisle Police Department, who administered the Breathalyzer test at approximately 8:04 p.m., testified that she is a certified BAC DataMaster operator. Officer Burns stated that the machine was tested once a month and that the machine was last certified on September 5, 2003. Officer Burns explained that the machine self-calibrated and would not run a test if it was not working properly. She testified that the result of appellant's test was 0.092.
Appellant's motion for a directed verdict was denied by the trial court at the close of the state's case, and appellant recalled Officer Burns as a witness for the defense. Officer Burns testified that the certificate dates for the BAC DataMaster were from October 1, 2003, to January 1, 2004, and conceded that the certificates that were admitted into evidence did not cover the date on which appellant was tested. She stated that she did not have the particular certificate dated September 5, 2003. Appellant renewed his motion, which was again denied.
Page 1 2 3 Arkansas DUI Attorneys
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