APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. No. CR-13-982-1. HONORABLE WILLIAM A. STOREY, JUDGE.
Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.
Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.
LARRY D. VAUGHT, Judge. PITTMAN and WALMSLEY, JJ., agree.
LARRY D. VAUGHT, Judge
The Washington County Circuit Court found appellant Courtney Tiller guilty of first-offense driving while intoxicated (DWI), and sentenced her to 365 days in the county jail, with credit for one day served and 364 days suspended, along with a $200 fine and $300 court costs. On appeal, Tiller argues that the trial court erred in denying her motions to suppress the results of three field sobriety tests (FST) and evidence of her refusal to take a breath test. We affirm.
At the suppression hearing, Springdale Police Officer Rusty Boyd testified that on October 23, 2012, he was on patrol during the evening shift when he observed a white Nissan Maxima cross the center line of the road several times. Officer Boyd signaled to the driver of the vehicle to pull over, at which time the officer made contact with Tiller. The officer testified that Tiller's eyes were bloodshot and watery; her actions were lethargic and exaggerated; and her speech was slow and deliberate. He
said that although she produced her license, she was not able to produce her proof of insurance or registration; however, he found the documents in her glove box. While Tiller denied that she had been drinking alcohol, she stated that she had taken a Celexa for depression about an hour prior to the stop. The officer testified that Celexa fell under the " CNS depressant category," and that a person can be intoxicated on a CNS depressant.
Based on Tiller's movements, speech, and consumption of a CNS depressant, Officer Boyd asked her to step out of her vehicle and advised her that he was going to administer three FST. He testified that Tiller demonstrated six of six indicators of impairment during the first test; six of eight indicators of impairment during the second test; and three of four indicators of impairment during the third test. Officer Boyd stated that based on his observations of Tiller before the testing and her failure of the tests, he believed that she was intoxicated and not able to safely operate her vehicle, which he concluded constituted probable cause sufficient to support her arrest for DWI. Officer Boyd transported Tiller to jail, where he read her the implied-consent form. Although she initialed the form, she refused to take the breath test. She was charged with first-offense DWI and violation of implied consent, and she was cited for driving left of center.
At the conclusion of Officer Boyd's testimony, counsel for Tiller moved to suppress the results of the FST, arguing that Tiller's Fourth Amendment rights had been violated because the officer conducted a warrantless seizure without her consent. Without the FST results, argued Tiller's counsel, there was a lack of probable cause to support the DWI arrest. The trial court denied the motion to suppress.
At the onset of the bench trial, counsel for Tiller renewed the motion to suppress the results of the FST, which the trial court denied. Counsel additionally moved to suppress evidence of Tiller's refusal to take the breath test, arguing that she had the constitutional right to refuse the test because it was a warrantless search, it was not evidence of consciousness of guilt, and admission would violate Rule 403 of the Arkansas Rules of Evidence. The trial court denied this motion as well. Thereafter, the parties stipulated to Officer Boyd's testimony from the suppression hearing, and the trial court found Tiller guilty of first-offense DWI. Tiller appeals, challenging the trial court's denial of her motions to suppress.
When reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Fisher v. State, 2013 Ark.App. 301, at 3-4, 427 S.W.3d 743, 746. A finding is in clear error when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been ...