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Rule v. State

Court of Appeals of Arkansas, Division II

June 18, 2014

HERBERT C. RULE, III, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 280

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR-13-695. HONORABLE WILLIAM A. STOREY, JUDGE.

Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Edwin N. McClure, for appellant.

Dustin McDaniel, Att'y Gen., by: Rachel H. Kemp, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Judge. WALMSLEY and HARRISON, JJ., agree.

OPINION

Page 281

ROBIN F. WYNNE, Judge

Herbert C. Rule, III, appeals his conviction for driving while intoxicated (DWI), challenging the sufficiency of the evidence. We affirm.

On August 9, 2012, appellant was arrested and charged with DWI, violation of the implied-consent law, improper lane usage, and failure to use a turn signal. After he was found guilty of these offenses in district court, he appealed to the Washington County Circuit Court. At the bench trial, the arresting officer, Jimmy Wicker of the Fayetteville Police Department, testified that he was with his field-training officer when he saw appellant's vehicle drift left of the white dotted line, make an improper lane change, and fail to signal. Officer Wicker initiated a traffic stop, and while appellant had no difficulty stopping, he parked on the incline to the entrance of the Walgreens Pharmacy on Joyce Boulevard. When asked, appellant pulled into the parking lot, completely onto a level surface, so that the officer could park out of the roadway. Appellant denied having had anything to drink that night. After speaking with appellant and his passenger and getting appellant's license and registration, Officer Wicker decided to perform field-sobriety testing based on appellant's manner of driving, the several traffic violations he observed, the odor of alcohol that he smelled coming from the vehicle, and the inconsistencies between appellant's and his passenger's stories. Officer Wicker administered the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand. Appellant agreed to take the tests, but he stated that he had a bad knee. Officer Wicker testified that he administered the HGN test and noted a total of four out of six clues. However, he admitted on cross-examination that he had administered the test incorrectly. Officer Wicker testified that when he administered the walk-and-turn test, he observed six out of eight possible clues. On the one-leg-stand test, appellant exhibited four out of four clues. After the tests, he placed appellant under arrest for DWI, at which point he again smelled the odor of intoxicants. Officer Wicker described appellant as " uncooperative." Officer Wicker testified that it was his opinion that appellant was too intoxicated to operate a motor vehicle, based on appellant's manner of driving, inconsistency of stories with his passenger, performance on the field-sobriety tests, his mannerisms, speaking, and replying, and his not immediately responding to requests to put things in the back of his car before testing. At the Washington County jail, appellant refused to sign the Arkansas DWI Statement of Rights form and refused to take a breathalyzer test. Wicker testified that appellant requested an attorney when he was going over the statement-of-rights form with him.

Corporal Greg Dawson testified that he was Officer Wicker's field-training officer on the night of appellant's arrest. He stated that on that night Wicker was almost done with his field training; he was in the fourth and final phase. He observed Officer Wicker administer the tests and did not notice any errors in the instructions, demonstrations, or actual testing. Corporal Dawson testified that in his opinion appellant was uncooperative and annoyed by the officers. Appellant did not appear to have any injuries, visual impairments, or difficulty understanding what Officer Wicker was telling him. Corporal Dawson stated that if Officer Wicker testified that he had administered the HGN test incorrectly, he would believe him.

Appellant made a motion for directed verdict on the DWI charge, arguing that

Page 282

the evidence was insufficient to support a conviction and that he was entitled to a directed verdict based on the following: there was no breath test; the only evidence of a traffic infraction was the failure to use a turn signal, while there were multiple examples of appellant driving correctly; the State had not " introduced any inconsistent stories" ; the officer testified that he performed the HGN test incorrectly; and " the agency that administers and regulates the field sobriety tests has stated that its tests are not certified for individuals over age sixty-five." Appellant was seventy-four years old at the time of his arrest. The court, treating the motion as one to dismiss, held that the State had offered sufficient evidence on each element to create a fact question; accordingly, the court denied the motion. After hearing the parties' closing arguments, the court took the case under advisement. Included in the evidence before the court were (1) a video of ...


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