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Cordero v. State

Court of Appeals of Arkansas, Division I

October 23, 2019



          Hancock Law Firm, by: Charles D. Hancock, for appellant.

          Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.


         Appellant Stephanie Cordero appeals after she was convicted by the Saline County Circuit Court of driving while intoxicated (DWI) after a bench trial. She was sentenced to five days in the Saline County Jail and a $1000 fine. On appeal, appellant's sole argument is that there was insufficient evidence to convict her of DWI. We affirm.

         I. Relevant Facts

         Appellant was driving home after shopping in Saline County the afternoon of November 9, 2016. After appellant admittedly ran a red light, a private citizen forced her to pull over by blocking her on the road until law enforcement could respond. After law enforcement arrived and observed her behavior at the scene, she was arrested and charged with DWI in violation of Arkansas Code Annotated section 5-65-103(a)(1) (Repl. 2016). After appellant was found guilty by the Saline County District Court, she appealed to circuit court. The circuit court held a bench trial on September 27, 2018.

         At trial, Sergeant Hanley Taylor testified that he was the first to respond to the scene. He noticed that appellant was really disoriented, her eyes were glossy, and her speech was broken. Because he did not smell any odor of alcohol, he requested the assistance of a drug recognition expert (DRE). Officer Michael McClain, a trained DRE, responded.

         Officer McClain testified that he observed that appellant's speech was slurred, her eyes were glazed over and watery, and her movements were slow and sluggish. After conducting field-sobriety tests at the scene, Officer McClain opined that appellant was under the influence and unable to operate her motor vehicle safely. He testified that although he initially allowed appellant to see if she could obtain a ride home, when she was unable to do so, he took her into custody. A video of appellant's transport to the Saline County Sheriff's Office was admitted into evidence.

         McClain testified that while at the Saline County Sheriff's Office, appellant consented to a twelve-step drug-influence evaluation. During the evaluation, appellant admitted to Officer McClain that she had been prescribed Flexeril, Lorazepam, Zofran, and Fioricet. Appellant told the officer that she had a bad migraine headache the night before and that she had taken Fioricet around midnight. Appellant then stated that when she awoke the following morning, she still had a migraine headache and that around 8:00 a.m. she took two additional Fioricet pills. Further, appellant stated that in addition to the two Fioricet pills she took that morning, she had also taken four over-the-counter pseudoephedrine pills for sinus issues. McClain testified that later in the evaluation, appellant changed her story and stated that she did not remember whether she took Fioricet that morning. Officer McClain stated that appellant continued to exhibit general indicators of impairment throughout the entire evaluation and that Fioricet is classified as a CNS depressant. Thus, it was his expert opinion that appellant was under the influence of CNS depressants and unable to operate a motor vehicle safely.

         Eric Westhafer from the Arkansas State Crime Laboratory testified that appellant's urine sample tested positive for barbiturates. She tested negative for other drugs. However, Mr. Westhafer stated that pseudoephedrine would not have showed up on that particular drug screen unless it was a very large amount. Although appellant tested positive for barbiturates, he could not tell from the test when the drug had been introduced into her body.

         Cody Miller, a board-certified pharmacist, testified that Fioricet is used to treat migraines and is a barbiturate. Mr. Miller explained that when someone is given a prescription for Fioricet, the bottle would contain certain warnings, including that the medication may cause drowsiness and dizziness. Additionally, it would warn appellant not to drink alcohol and to use care when operating a vehicle, a vessel, or other machinery. Although Mr. Miller admitted he did not know what appellant's prescription-medication bottle actually stated, he testified that there should have been a warning label about operating a vehicle regardless of the length of time appellant had been prescribed the medication.

         After the State rested its case, appellant moved for a dismissal on the basis that the State failed to make a prima facie case. She specifically argued that the State failed to prove the required culpable mental state-that appellant acted purposely, knowingly, or recklessly-pursuant to our supreme court's decision in Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331. The State responded that the culpable mental state is strict liability. The trial court denied appellant's motion to dismiss, "finding that . . . it is a strict liability offense, but I think the fact that she was in the traffic lane with a vehicle under the influence is sufficient to satisfy any mens rea, especially as direct recklessness - - reckless conduct[.]"

         Appellant's ex-husband, Christopher Cordero, testified on her behalf. He described appellant's long history with migraines and stated that her migraines would cause her to become disoriented and slur her speech. Mr. Cordero further testified that sometimes she ...

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