APPEAL
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-17-637]
HONORABLE BARBARA WEBB, JUDGE.
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.
KENNETH S. HIXSON, JUDGE
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 ...