Ark. Code Ann. § 5-65-102 (2026)

Research References

U. Ark. Little Rock L.J.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 559.

Case Notes

Constitutionality.

The term “intoxicant” as used in subdivision (1) (now (4)) of this section is not unconstitutionally vague. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).

Intoxicated.

—In General.

Due process requires only fair warning, not actual notice; the definition of “intoxicated” in this section fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a motor vehicle after consuming a sufficient quantity of alcohol to alter his reactions, motor skills and judgment to the extent that his driving constitutes a substantial danger to himself or others. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

A law is held to be vague when it leaves the police or the factfinder free to decide, without a fixed standard, what is prohibited; the definition of intoxicated, set out in this section, is a sufficient standard for police enforcement and for ascertainment of guilt. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

The driver's skills under normal conditions are immaterial; it is driving with those skills impaired by intoxication to the extent that it causes the danger outlined in this section that brings the driver within the proscribed activity. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985).

—Evidence.

Evidence held sufficient to find that the defendant was intoxicated. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985); Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988).

The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation, and proof by chemical test that the motorist's blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995).

Evidence of DWI, fifth offense, held sufficient where defendant refused to submit to a breathalyzer test, failed field sobriety tests, and the officers testified that they smelled intoxicants on defendant's person. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).

If the refusal to be tested is admissible evidence on the issue of intoxication, as defined in this section, and may indicate the defendant's fear of the results of the test and the consciousness of guilt, then a defendant's attempts to prevent accurate testing surely may be considered as similar proof of guilt; the court's decision does not turn on whether an appellant's efforts to interfere with testing were or could have been successful and even futile efforts to interfere with blood-alcohol testing may be considered as proof of guilt. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).

Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of blood-alcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under § 5-65-206(a)(2), a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication. Based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in this section, and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).

Sufficient evidence supported a finding defendant was intoxicated, as defined in this section, for purposes of a charge of fourth offense driving while intoxicated because defendant was in possession of four bottles of controlled substances at the time of an accident, several witnesses, including a police officer, testified about defendant's substantial impairment immediately after the accident, and defendant had a positive drug screen for a controlled substance. Henry v. State, 2011 Ark. App. 169, 378 S.W.3d 832 (2011).

Sufficient evidence supported defendant's conviction for driving while intoxicated (DWI) where the evidence showed that: (1) defendant was driving his car erratically, causing him to leave the highway; (2) defendant was either passed out or unresponsive with his foot still on the accelerator and a tire spinning; (3) the police had to help defendant out of his car, and he was unsteady and unable to walk or stand on his own; (4) a police officer described defendant as being in a daze with slurred speech; (5) defendant's car smelled of marijuana, it contained a partially-smoked joint, and defendant told the police he had been smoking marijuana as well as ingesting large amounts of cold medicine; and (6) defendant testified at trial that he had been smoking marijuana immediately before operating his vehicle that evening. From the evidence presented, the jury could conclude with reasonable certainty that defendant's use of marijuana influenced him to such a degree that he presented a clear and substantial danger of physical injury to himself and others. Morton v. State, 2011 Ark. App. 432, 384 S.W.3d 585 (2011).

Evidence was sufficient to sustain defendant's conviction for driving while intoxicated because defendant was seen driving erratically, and her urine test came back positive for drugs; the positive drug screen, admission of taking drugs that were known by defendant to be contraindicated with operating a motor vehicle, and the observed reckless driving were sufficient evidence to show defendant was intoxicated. Carruth v. State, 2012 Ark. App. 305 (2012).

Trial court did not give the field sobriety tests predominant weight and instead relied on other factors in finding defendant guilty, including the arresting officer’s opinion that defendant was intoxicated; although defendant offered alternative explanations for the factors relied on by the trial court as evidence of his guilt, the weight of the evidence and the credibility of the witnesses were matters for the trial court. Rule v. State, 2014 Ark. App. 390, 438 S.W.3d 279 (2014).

Directed verdict was properly denied as to a driving while intoxicated charge where defendant's vehicle was in a ditch as a result of a one-car accident, he failed three field sobriety tests, he had taken prescription medication, and a drug-recognition expert testified that he was affected by a central nervous system stimulant. Fiveash v. State, 2015 Ark. App. 187, 458 S.W.3d 774 (2015).

In a driving while intoxicated case, the evidence was sufficient to support the conviction where a corporal smelled intoxicants in defendant's car, he observed an empty beer can on the floor of the vehicle, and he noticed that defendant's eyes were bloodshot and watery. Defendant refused to take a breathalyzer test, performed poorly on field tests, and admitted to drinking beer before the stop; moreover, the corporal considered defendant to be intoxicated and a danger to other drivers. Reardon v. State, 2015 Ark. App. 583, 473 S.W.3d 575 (2015).

—Intoxicant.

The addition of the term “any intoxicant” to “alcohol, a controlled substance, or a combination thereof” has not made the definition vague; a person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in subdivision (2) (now (4)) of this section constitutes use of an “intoxicant” and that being in control of a motor vehicle shortly thereafter may violate the law. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).

The General Assembly has recognized in § 5-60-116 that toluene is an intoxicant. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).

Cited: Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989); Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990); Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).