dissenting. I agree with the proposition that a trial court has inherent power to punish contemptuous behavior committed in its presence. However, although this power is broad, it is not without limit. See, e.g., Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). Moreover, we have admonished that “[t]he contempt power should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue.” Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).
In this case, the facts are not in dispute. Burradell was punished only because the smell of alcohol on his breath led to the administration of a portable breath test and a reading of a .13 blood-alcohol content. The abstract reflects that he was summarily found in contempt without any further discussion when the municipal judge was advised about the portable breath-test results. It is also undisputed that Burradell displayed no outward signs of intoxication.
Burradell has appealed from his circuit court conviction for contempt after a de novo review in which the conditions that led to the original contempt conviction fortunately were not duplicated. The circuit court found that Burradell was “under the influence” rather than intoxicated. However, he expressed concern about the proceedings in municipal court:
The Court: Now, the one element here that I think that’s different, there’s one element not involved here that’s —and I’m not trying to second guess the [municipal] judge at all. The one element, at least I think, that would — I’ve always required, at least in my own observation of this — and believe me, I’ve locked up more than one for showing up in court drunk, and will continue to — or under the influence. To me to come in here — I mean, it’s one thing to have a drink. It’s another thing to have two drinks. But to come in here and blow a thirteen, that’s not just a drink or two for dinner. But there is one element that’s lacking here that I usually have, at least in a personal sense have always required, and that is that the Court make some personal observation that would indicate the person’s under the influence, and I don’t have that with what you all have presented so far.
Prosecutor: It’s because there was none, your Honor. It would be the State’s stipulation that other than the blood alcohol and the smell of intoxicants that he displayed no outward signs of being intoxicated.
The Court: Well, as bad as I hate to do it, I think I’ll take this under advisement for about two weeks.
(Emphasis added.)
The circuit court also reduced Burradell’s sentence from two days to the time he had already served, twelve hours, upon the recommendation of the prosecution. Burradell further had the opportunity to address the court at his de novo hearing, a consideration he did not receive in municipal court. He apologized for his conduct, explained to the court that there was no disrespect intended, that he was nervous and afraid of appearing in court, and that he “made the wrong judgment on a sedative.” There is an element of truth in this comment, because had he taken Valium or some other medication, or perhaps even used a good mouthwash, he would have been judged as he should have, solely on his conduct “in the presence of the court.”
Indeed, this court has previously commented on the importance of the attitude of a person facing a charge of criminal contempt:
Perhaps there is no case in which the [trial] court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part.
Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983). (Emphasis added.)
Finally, a trial court may punish for contempt committed in its presence without comporting with the due process standards attendant in other criminal contempt proceedings. See, e.g Fitzhugh v. State, 296 Ark. 137, 664 S.W.2d 596 (1988). This is all the more reason that the municipal judge should have ensured that the necessity of exercising this considerable power was “plain and unavoidable if the authority of the court is to continue.” Edwards v. Johnson, supra.
I would reverse.
Dudley and Newbern, JJ., join in this dissent.