dissenting. Based on our standard of review, I am unable to say that there is no substantial evidence to support appellant’s conviction for driving while intoxicated, third offense. Therefore, I respectfully disagree with the majority’s reversal of this conviction based on insufficient evidence.
The facts of this case are straightforward. State Trooper Jim Brown investigated a one-vehicle accident that occurred at around six o’clock on Sunday morning, May 20, 2001. The appellant was the driver and sole occupant of the vehicle that was involved in the wreck. While at the scene, Officer Brown detected the odor of alcohol about appellant’s person. Brown described the odor as being “strong.”
Appellant was taken to the hospital. A blood sample was drawn by the hospital at 7:00 .a.m., and testing of that sample showed appellant’s blood-alcohol content to be .0904%. This test result, and the testimony given about it, were admitted into evidence without objection. Another blood sample was taken at 9:00 a.m. at the direction of Officer Brown. The result of that test showed a blood-alcohol level of .05%.
Our legislature has provided two different ways of proving a DWI violation. Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999). At the time of the offense, Arkansas Code Annotated section 5-65-103 (Repl. 1997) provided that (a) it is unlawful . . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle, or (b) it is unlawful ... for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance. In order to be in violation of this statute, it need only be proven that the accused was “intoxicated”; it is not necessary for it to be proven that the accused’s blood-alcohol content reached the level .10%. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997); State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996). The term “intoxicated” means influenced or affected by the ingestion of alcohol 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 or other motorists or pedestrians. Ark. Code Ann. § 5-65-102(1) (Repl. 1997). Arkansas Code Annotated section 5-65-206(a)(l) (Supp. 2000) provides that, if the amount of alcohol in the defendant’s blood within four hours of the offense is .05% or less, then it is presumed that the defendant was not under the influence of an intoxicating liquor. If the defendant’s blood-alcohol content exceeds .05% but is less than .10%, there is no presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the defendant’s guilt or innocence. Ark. Code Ann. § 5-65-206 (a) (2).
Appellant argues on appeal that the evidence is insufficient based on the test result showing a blood-alcohol content of .05% and the afore-mentioned presumption found in Ark Code Ann. § 5-65-206(a)(1). This argument ignores, however, the contradictory blood-alcohol result which showed an increased level of alcohol at .0904%. Variances and discrepancies in the proof go to the weight and credibility of the evidence and are, therefore, matters for the factfinder to resolve. Hunter v. State, 62 Ark. App. 275, 970 S.W.2d 323 (1998). Accordingly, it was for the factfinder to resolve any conflicts and inconsistencies in the evidence. Id.
In determining the sufficiency of the evidence to support a criminal conviction, the appellate court is to view the evidence in the light most favorable to the appellee and to consider only the evidence that supports the verdict. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2001). When the evidence is viewed in the appropriate light, it shows a blood-alcohol level of .0904%, which is, incidentally, just shy of .10% and much greater than .05%. In addition to that test result showing a substantial presence of alcohol, there was evidence that appellant was involved in a one-vehicle accident, and there was testimony from the investigating officer that there was a strong odor of alcohol about appellant’s person. The blood-alcohol test result in evidence here distinguishes this case from Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998), where we found the evidence to be insufficient where the State’s proof showed only that the appellant smelled of alcohol and was involved in a one-vehicle accident. Based on the .0904% test result, the strong odor of alcohol, and appellant’s apparent loss of control of his vehicle, I cannot say that there is no substantial evidence to support the trier of fact’s conclusion that appellant was affected by the ingestion of alcohol to such a degree that his reactions, motor skills, and judgment were substantially altered such that he constituted a clear and substantial danger of physical injury or death to himself and others.
The majority reaches a contrary conclusion by discounting the test result of .0904%. It does so by weighing the evidence, passing judgment on the credibility of the evidence, and resolving the conflicts in the evidence in appellant’s favor. However, it was for the factfinder to make those determinations, not this court on appeal. It is simply our job to determine whether there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the appellee and considering only the evidence that supports the verdict. The .0904% test result was admitted into evidence without objection and was competent evidence for the trial court to consider and deem trustworthy. Under a proper application of our standard of review, appellant’s conviction must be affirmed.
Appellant’s second point concerns the trial court’s admission of the .0904% test result. The majority states that it is not addressing that issue. However, in determining that the evidence is insufficient, the majority has in fact embraced the arguments raised by appellant in his second point for reversal. This is wrong. This test result was admitted without objection and any issue as to its admissibility has not been preserved for appeal. Secondly, in reviewing the sufficiency of the evidence, the appellate court is to consider in its review all of the evidence, even that which might be considered inadmissible. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
The effect of the majority opinion is that a driver’s crashing of his car in a single-car accident, accompanied by proof that the driver had a strong smell of alcohol about him and tested positive with a .0904% blood-alcohol content, is not sufficient, as a matter of law, to sustain a conviction for DWI. The majority opinion suggests that under State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996), these factors must also be accompanied by proof of slurred speech, glassy eyes, and a confession before a finding of guilt can be made. This was not the holding of the supreme court in Johnson v. State, and today’s decision marks a significant departure from existing case law, and is an additional basis for my dissent.
I am authorized to state that Judge Sam Bird joins in this opinion.