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Holmes v. State8/31/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Albert L. Holmes was convicted in a bench trial of fourth-offense DWI. He was sentenced to one year in a regional punishment facility to be followed by a three-year suspended imposition of sentence. Mr. Holmes now appeals from his DWI conviction, arguing that there was insufficient evidence to support the decision.
In reviewing a challenge to the sufficiency of the evidence, we affirm if, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conviction. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.
Officer Jeremy Ward testified that he was patrolling in Blytheville on the evening of December 5, 2003, and that he stopped a vehicle being driven by Mr. Holmes. Officer Ward stated that he initiated the stop because he knew that Mr. Holmes was driving on a suspended license, and also because the vehicle license had restricted tags due to a prior DWI. Officer Ward stated that he approached Mr. Holmes and upon making contact smelled a strong odor of intoxicants. Officer Ward observed that there was a passenger seated next to Mr. Holmes.
Officer Ward asked Mr. Holmes to step out of the vehicle, and he proceeded to perform three sobriety tests. According to Officer Ward, the first test he performed was the HGN test, which Mr. Holmes failed. The next test was the one-leg stand test, where the person stands with his arms at his sides and raises one foot six inches off the ground and counts to thirty. Officer Ward testified that "Mr. Holmes was wobbling as he performed the test and he had to put his foot down several times," and that he completed the test but failed it. The final sobriety test was the walk-and-turn test, which is performed by taking nine heel-to- toe steps forward, turning around, and walking back in the same fashion. Officer Ward stated, "He did complete it, but he took steps off line and was also wobbling as he performed that test."
Officer Ward testified that, after Mr. Holmes failed the tests, he arrested him for suspicion of DWI. Mr. Holmes was transported to the police station, where he refused to submit to a Breathalyzer test. On cross-examination, Officer Ward testified that, on the evening of his arrest, Mr. Holmes stated that he was not drunk and had only had a couple of beers.
For reversal of his conviction, Mr. Holmes argues that there was no substantial evidence that he committed DWI. Mr. Holmes was convicted under Ark. Code Ann. § 5-65-103(a) (Supp. 2003), which provides, "It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle." Mr. Holmes contends that the State failed to offer substantial proof that he was intoxicated under the definition set out in Ark. Code Ann. § 5-65-102(1) (Repl. 1997), which provides:
(1) "Intoxicated" means 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[.]
In support of his argument, Mr. Holmes notes that Officer Ward did not observe weaving, speeding, or other actions that would indicate an impairment prior to stopping the vehicle. Mr. Holmes further asserts that,
Page 1 2 Arkansas DUI Attorneys
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