Fiveash v. State

2015 Ark. App. 187, 458 S.W.3d 774, 2015 Ark. App. LEXIS 230
CourtCourt of Appeals of Arkansas
DecidedMarch 18, 2015
DocketCR-14-582
StatusPublished
Cited by2 cases

This text of 2015 Ark. App. 187 (Fiveash v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fiveash v. State, 2015 Ark. App. 187, 458 S.W.3d 774, 2015 Ark. App. LEXIS 230 (Ark. Ct. App. 2015).

Opinion

ROBERT J. GLADWIN, Chief Judge

hOn March 31, 2014, Timothy Allen Fi-veash was convicted in the Boone County Circuit Court of driving while intoxicated and driving on a suspended license. 1 On appeal, he argues that there was insufficient evidence to convict him of either count, and he contends that the trial court erred in admitting as evidence a copy of his restricted license. 2 We affirm.

12At appellant’s bench trial, Boone County Deputy Gene Atwell testified that he was the first officer on the scene of the one-car accident on Quail Road, where, appellant’s vehicle had left the roadway, tangled in a fence, and landed in a ditch on the right side of the road. Atwell described appellant as “excited” and said that appellant would not “stand still long enough to talk to me.” Atwell testified as follows:

I asked him to walk up the hill and stand in front of my patrol car. The ditch was four to five feet, so it was a small hill. Mr. Fiveash did not comply with my request the first two times. He complied on my third request. He got to the top of the hill and asked which car. I told him the only car with the blue lights on. At that point, he started to walk down the road away from my vehicle saying he needed to find somebody to get his vehicle out. I asked him to come back to the car. He stopped and looked at me. He said something I couldn’t hear, so I went after him and asked him to come back to my vehicle. We walked to the front of my car. I tried to talk to him and he took off down the road the other way. Once again, I went and got him and brought him back to the front of my vehicle. He was very hard to talk to. He was all over the place and I couldn’t get his attention.

Atwell said that appellant denied having taken any drugs or drinking, and again, appellant began to walk away.

Deputy Brad Duck testified that he performed field-sobriety tests on appellant, and the tests were videotaped from his police vehicle. The videotape was introduced and played for the circuit court. Duck said that appellant failed the horizontal-gaze-nystagmus test because appellant kept turning his head rather than following the officer’s finger movement with his eyes. Appellant also failed the walk-and-turn test, where appellant was to stand with one foot in front of the other, heel to toe, hands down to the side, and take a series of nine steps, at the end of which, he was to turn around and walk back. Duck said that appellant was unable to pay attention to his commands. Finally, appellant was unable to perform the one-leg stand, |swhich was holding one foot six inches off the ground for several seconds. Duck said that appellant tried several timés and almost fell over at one point. Appellant denied' having had any alcohol, and Duck observed that appellant would not follow any commands and would not pay attention. Appellant told Duck that he had problems with his equilibrium and his prostate.

Duck arrested appellant and found Ad-derall, a prescription medication, on appellant’s person. Duck said that, when they arrived at the sheriffs office, appellant passed the breathalyzer test after he signed the “rights form.” Duck testified that appellant was unable to provide a urine sample for testing, which was reflected as a refusal.

Appellant objected to any testimony about the status of his driver’s license from Duck, claiming that the testimony was inadmissible hearsay. The State claimed that the objection was premature. The circuit court overruled the objection.

Duck testified that, at the jail, appellant gave him a restricted-driving permit, but Duck said that he did not have the actual permit from that day, as it had been “sent down with the DWI stuff to the State.” Appellant objected to the admission of a copy of 'the permit, arguing that the defense was entitled to see the actual permit, and the State argued that the copy should be admitted based on the officer’s testimony. The circuit court overruled the objection and admitted the copy. When Duck testified that appellant was allowed to drive under certain conditions, appellant objected to his testifying about what the permit allowed. The State maintained that the document could “speak for itself.” Thereafter, testimony continued, and no ruling was reflected. Duck testified that he gave appellant a citation for 14 driving on a suspended license because, according to the information appellant provided, appellant was not obeying the permit.

• Investigator Brian Watson, a drug-recognition expert, testified that his impression, after talking with appellant that night, was that appellant was reacting to a central-nervous-system stimulant. He said that appellant was talking really fast and displaying bruxism, which is grinding of the teeth.

Appellant moved for a directed verdict, arguing that the State failed to prove that he was intoxicated under the applicable statute’s definition. Appellant further argued that, because the State failed to show compliance with Arkansas Code Annotated section 5-65-204(d) (Supp. 2013), which provides that a law-enforcement officer’s failure to advise a person in writing of his right to have an additional chemical test precludes the admission of evidence relating to a chemical test taken at the direction of the law-enforcement officer, any evidence from any test was inadmissible.

The State argued that appellant moved for admission of the test. 3 The State claimed that there was enough evidence presented to prove that appellant was impaired to the extent that he should not be driving. The circuit court denied the motion.

Appellant testified that he had a urinary-tract problem and problems with his equilibrium. He explained that he was traveling back to Fayetteville after having driven to RHarrison for a copy of a school transcript. He said that he did not realize that the school would not bq open on a Saturday. He claimed that he had asked “about ten times” to have his own blood test done after the accident, but this was never allowed. He claimed that they told him that a urine test was better than a blood test. He said that he did not refuse the urine test, but he told them that he could not urinate because he was having prostate problems. He said that he offered to take a blood test and “they would not do it.” He continued,

They did not advise me that I had a right to have my own test at my own expense. I knew I did. I was going to pay for it. I had the money on me. I had medication on me ... It is hard when I am in school so it is for focus. I do not even take as much as I am supposed to take. If I do not take it, I do not know what is going on. It is confusing at the least. I do not take as much as I am supposed to because it makes me feel like I am high.

On cross-examination, appellant admitted that he drove to his mother’s house every weekend and then sometimes even through the week. He said that he must have given the original driving permit to the officer and that his signature appeared at the bottom. He said that he was using, that permit for permission to drive and that he was told he could go to school or drive in emergencies.

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Bluebook (online)
2015 Ark. App. 187, 458 S.W.3d 774, 2015 Ark. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiveash-v-state-arkctapp-2015.