dissenting. Because I believe that the odor of intoxicants following a single-car accident considered together with a blood-alcohol level below the legal limit is not sufficient to support a conviction of DWI, Third Offense, I respectfully dissent.
In reviewing a criminal case challenged for want of sufficient evidence, this court will not reweigh evidence, but rather determines whether the evidence at trial was substantial enough to support the conviction, or whether the evidence was forceful enough to compel reasonable minds to reach a conclusion one way or the other without resort to speculation or conjecture. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002) (emphasis added). We only consider evidence in a light favorable to the appellee and only evidence that supports the conviction. Id.
Mr. Porter was convicted under Ark. Code Ann. § 5-65-103 (Supp. 1999), which provides the State with two alternate methods of proving the offense of driving while intoxicated. At the time of the offense, Ark. Code Ann. § 5-65-103(b) made it illegal for someone to operate a motor vehicle if a blood-alcohol test showed one-tenth of one percent (0.10%) or greater alcohol by weight in the bloodstream.1 Mr. Porter did not show 0.10% or greater alcohol by weight in his bloodstream. The blood-alcohol test administered by the hospital thirty minutes after the one-vehicle wreck showed 0.0904% alcohol 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.
Ark. Code Ann. § 5-65-103 has since lowered the threshold of intoxication to 0.08 grams of alcohol per 100 milliliters of blood in a blood-alcohol test.