NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
OLLY NEAL, Judge
DIVISION III
CACR01-1046
MARCH 20, 2002
HENRY CANDELARIA AN APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT v. [CR2000-3997]
STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE, APPELLEE CIRCUIT JUDGE
AFFIRMED
Appellant Henry Candelaria was sentenced in the Pulaski County Circuit Court to seven days in the Pulaski County Detention Center and fined $500 plus costs for DWI 2nd and Refusal to Submit. The facts giving rise to this case are as follows. On July 15, 2000, at about four o'clock in the morning, appellant was driving home from a club in his Dodge Neon. When Officer James Harper of the Sherwood Police Department observed the right tire of appellant's vehicle leave the roadway, he stopped the vehicle and made contact with appellant. Harper noticed the odor of intoxicating beverages coming from the vehicle and asked Candelaria if he had been drinking. Appellant informed the officer that he had consumed two beers at about 10:30 on July 14, 2000. Harper performed field sobriety tests on appellant, all of which he testified appellant failed.
On appeal, appellant argues that (1) because the police officer lacked reasonable cause to stop him, all evidence obtained as a result of the illegal stop should have been excluded by the trial court; and (2) there was insufficient evidence that appellant was intoxicated, and therefore, the trial court should have dismissed the case. We affirm.
Double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to other assignments of circuit court error. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Curtis v. State, ___ Ark. App. ___, ___ S.W.3d ___ (February 20, 2002). When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support the verdict, when viewed in the light most favorable to the State. Id.; see Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Sufficient evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Curtis v. State, supra. We do not weigh the evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Barrientos v. State, 72 Ark. App. 376, 39 S.W.3d 17 (2001) (citing Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990)). Nor do we pass on the credibility of the witnesses as that duty is left to the trier of fact. Id.
In support of his argument that the evidence was insufficient to support hisconviction for driving while intoxicated, Candelaria relies on Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990), and argues that since there was no evidence that he had .10%1 or more alcohol in his blood at the time he was driving the vehicle as required by Ark. Code Ann. § 5-65-103(b) (Supp. 2001), the State had to show that he was intoxicated under Ark. Code Ann. § 5-65-103(a) (Supp. 2001). Arkansas Code Annotated section 5-65-103(a) (Supp. 2001) makes it unlawful for an intoxicated person to operate or be in actual physical control of a vehicle. The term "intoxicated," as used in this section, means "influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians." Ark. Code Ann. § 5-65-102(1) (Repl. 1997).
In Roach, we held that the State failed to show that Roach was driving under the influence of a controlled substance due to the absence of any showing that an empty bottle of prescription pills in Roach's car contained a controlled substance. The facts in the present case are easily distinguishable from those in Roach. Here, we have substantial evidence gleaned from field sobriety tests, whereas no tests were performed in Roach.
There was testimony that Candelaria failed all three of the field sobriety tests that were administered to him. Officer Harper testified that, during the eye-gaze nystagmustest, Candelaria showed a lack of smooth pursuit in both eyes, the onset of nystagmus prior to 45 degrees, and distinct nystagmus at maximum deviation. During the one-leg stand test, Officer Harper testified that appellant was unsteady on his feet, swayed back and forth, and twice lost his footing. During the walk-and-turn test, Candelaria could not keep his balance and had to use his arms for balance, made a large turn, and stepped off the line on three occasions. Officer Harper testified that there was no actual line, but only an imaginary line.
We note that Officer Harper testified that he did not indicate during appellant's one-leg stand field sobriety test the point at which Candelaria used his arms to balance. Officer Harper acknowledged that, according to the standardized field sobriety tests, he understood that Candelaria was allotted six inches; however, he took no affirmative action to note how far appellant raised his arms, but only indicated that Candelaria "raised it enough I noted it." Nor did Harper indicate the point at which appellant put his foot down in the report, but only opined that "He raised it throughout the test. He did it more than once on several occasions." The officer also admitted that "there was not a line to walk down" during the walk-and-turn test. Certainly the officer was not implying that Candelaria could see the same imaginary line he did, as no two people would view the same imaginary line. He admitted that although he was trained by the National Highway Traffic Safety Administration, he had not read the manual verbatim. The excuse he gave was that "I'm human."
Candelaria's conviction is nevertheless supported by substantial evidence. Theofficer testified that he smelled the odor of strong intoxicants emanating from appellant's car. We have recognized that the observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence of intoxication. Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999). Further, Candelaria's refusal to be tested was also admissible evidence on the issue of intoxication, and may indicate his fear of the results of the test and the consciousness of guilt. Id.
Appellant next argues that because Officer Harper lacked reasonable cause to stop him, all evidence obtained as a result of the illegal stop should have been excluded by the trial court. This argument is couched in terms of a denial of a motion to suppress. As it appears that appellant did not properly make a motion to suppress below, we decline to consider his argument on appeal.
Arkansas Rule of Criminal Procedure 16.2 (2001) provides that objections to the use of evidence on the ground that it was illegally obtained must be made by a motion to suppress filed no later than ten days before the date set for trial of the case, except that the court for good cause may entertain a motion to suppress filed within less than ten days. Ark. R. Crim. P. 16.2 (2001); see Vega v. State, 26 Ark. App. 172, 762 S.W.2d 1 (1988). This court, in Cole v. State, held that when there is nothing in the abstract or the record showing that the trial court ever ruled on appellant's written motion to suppress prior to the start of the trial, and the appellant makes an oral motion to suppress and to dismiss the charges after the State rests, the issue is not preserved for appellate review. 68 Ark. App. 294, 6 S.W.3d 805 (1999). Although a contemporaneous objection is not required in a bench trial, precedent strongly suggests that a party must orally raise or renew a motion to suppress at the beginning of trial. Id. (citing Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998)). Here, neither the abstract nor the record indicates that appellant filed a motion to suppress before trial. Nor is it evidenced that appellant orally raised a motion to suppress argument at the beginning of trial. Further, a police officer may stop a motorist only if the officer had probable cause to believe that the defendant was committing a traffic offense at the time of the initial stop. Laime v. State, 73 Ark. App. 377, 43 S.W.3d 216 (2001). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected; the question of whether the officer had probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis for the stop. Id. In assessing the existence of probable cause, the appellate court's review is liberal rather than strict. Barrientos v. State, supra.
Arkansas Code Annotated section 27-51-302(1) (Repl. 1997) provides that a car must be driven entirely within a single lane, and Ark. Code Ann. § 27-51-104(a) (Supp. 1999) makes it unlawful for a driver to improperly maintain control of his car. In the present case, Officer Harper testified that he observed Candelaria make a left-hand turn in which his right rear tire left the roadway. Based on Harper's testimony, probable cause existed for him to believe that an offense had been committed.
We affirm.
Crabtree, J., agrees.
Pittman, J., concurs.
1 Although Arkansas Code Annotated section 5-65-103(b) (Repl. 1997) formerly required one-tenth of one percent (0.10%) or more, the statute, as amended in 2001 now requires eight-hundredths (0.08) or more.