Ark. Code Ann. § 5-65-103 (2026)

Research References

ALR.

Vertical gaze nystagmus test: Use in impaired driving prosecution. 117 A.L.R.5th 491.

Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving while under influence of alcohol or drugs. 17 A.L.R.6th 757.

U. Ark. Little Rock L.J.

Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.

Seventeenth Annual Survey of Arkansas Law — Constitutional Law, 17 U. Ark. Little Rock L.J. 450.

Case Notes

Constitutionality.

The Omnibus DWI Act of 1983 is not unconstitutional on its face or as applied, in that subsection (b) (see now (a)(2)) establishes a conclusive presumption of guilt. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Subsection (b) (see now (a)(2)) is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).

Subsection (b) (see now (a)(2)) meets due process requirements. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

The blood alcohol measurement standard in subsection (b) (see now (a)(2)) bears a reasonable relationship to the legitimate state interest in protecting the safety of its citizens. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

The state has a rational basis in protecting public safety, and to that end, the General Assembly has determined that a driver with a blood alcohol content of .10% or more constitutes a serious and immediate threat to the safety of all citizens; the Omnibus DWI Act of 1983 is simply a reasonable means of protecting the public safety. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

The Omnibus DWI Act is not unconstitutional on the ground that a machine rather than a jury of peers is the basis for the conviction since it is up to the jury to determine whether the defendant was operating a motor vehicle and whether his blood alcohol content was in fact greater than the statutorily set standard. Girdner v. City of Kensett, 285 Ark. 70, 684 S.W.2d 808 (1985).

Subsection (a) (now (a)(1)) is not unconstitutionally vague. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

Subsection (b) (see now (a)(2)) which makes it a violation per se to drive with a blood alcohol content of .10% or more is not unconstitutionally vague. Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

In General.

City attorney of a first-class city had authority to prosecute a state misdemeanor violation because he was acting as a de facto official. Chronister v. State, 55 Ark. App. 93, 931 S.W.2d 444 (1996).

Construction.

Under § 5-65-206(a)(2), if a person's blood alcohol content is lower than that required by subsection (b) (see now (a)(2)) of this section, other competent evidence may be used to show intoxication under subsection (a) (now (a)(1)). State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).

Although defendant was charged with DWI second offense but convicted instead of DWI first offense, the defendant was not acquitted of the “charge” of DWI second offense under § 5-65-104; once the municipal court convicted defendant of DWI first offense, he simply had two separate convictions of violating this section, since DWI first offense is just as much a violation of this section as is DWI second offense. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998).

Critical point for counting driving while intoxicated (DWI) offenses is at the sentencing phase of the DWI case, not the date that the crime is committed, and § 5-65-111 plainly contemplates determining total DWI offenses within five years of the first offense and, to the extent Ark. Model Jury Instruction Crim. § 2d 9201.4 is in conflict with the method of counting prior offenses, § 5-65-111 prevails. State v. Sola, 354 Ark. 76, 118 S.W.3d 95 (2003).

Subsection (b) (now (a)(2)), as amended in 2001, sets the legal limit for blood alcohol concentration and must be read in conjunction with § 5-65-204(a)(1), which defines the alcohol concentration computation; hence, where defendant stipulated that his blood alcohol concentration as revealed in breathalyzer test results was 0.109, his conviction for per se violation of subsection (b) (now (a)(2)) was affirmed on appeal. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004).

All-Terrain Vehicles.

An all-terrain vehicle meets the definition of a motor vehicle as set out in § 27-14-207, since all-terrain vehicles are self-propelled and do not require rails; the term motor vehicle, as used in this section, also includes all-terrain vehicles. Fitch v. State, 313 Ark. 122, 853 S.W.2d 874 (1993).

Authority to Arrest.

After seeing appellant and smelling intoxicants, an officer had the authority to arrest appellant for driving while intoxicated. Ward v. State, 2012 Ark. App. 649 (2012).

There was reasonable cause for defendant's arrest for DWI under this section, because the trooper's observations of defendant's driving, his demeanor, and the odor of alcohol led him to believe that defendant was driving under the influence of intoxicants and was a danger to himself or others. The trooper administered two tests to defendant, both of which registered a blood-alcohol content of .12 percent; therefore, there was substantial evidence to support his DWI conviction. Lewis v. State, 2013 Ark. App. 39 (2013).

Burden of Proof.

Subsection (b) (see now (a)(2)) does not lessen the state's burden of proof, and each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty of committing the prohibited act of driving with .10% or more alcoholic content in the blood. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Subsection (b) (see now (a)(2)) does not deprive the accused of the presumption of innocence by shifting the burden of proof to the defendant and creating an irrebuttable presumption of guilt, for each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty of committing the prohibited act of driving with .10% or more alcoholic content in the blood. Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

The state must prove not only that defendant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated. Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988).

To convict defendant of driving while intoxicated the state has to prove that defendant was driving or in actual physical control of a motor vehicle, that defendant's driving skills were sufficiently impaired to create a substantial danger to himself and others, and that the impaired driving skills were the result of the ingestion of a controlled substance. Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990).

This section does not require that law enforcement officers actually witness an intoxicated person driving or exercising control of a vehicle; it is well-settled that the state may prove by circumstantial evidence whether a person operated or was in actual physical control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

In a driving while intoxicated case, the state is not required to prove that the defendant confessed or prove that she possessed an intent to drive drunk; contrary to defendant's claim, the state was not required to prove that a law enforcement officer actually witnessed the intoxicated person driving or exercising control over the vehicle, as the state could make that showing by circumstantial evidence. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).

Charging Document, Citation, Etc.

A charging document, which reflected that the defendant was “charged with the offense of Driving While Intoxicated (DWI) one” was sufficient for a conviction under either subsection (a) or (b) (see now (a)(1) or (a)(2)), even though the evidentiary requirements of the subsections are different. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985).

Citations which charged defendant with “Driving Under the Influence of Intoxicants” were not void for lack of specificity in that they did not indicate under which subsection of this section of the Omnibus DWI Act the defendant was charged. Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

Where the actual charge was “D.W.I. 5-65-103,” and the citation did not specify either subsection of this section, since subsections (a) and (b) (see now (a)(1) and (a)(2)) are, legally, two different ways to prove a single violation, it does not matter if defendant is charged under subsection (b), but convicted under subsection (a). Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), overruled in part on other grounds, Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).

A charge of “DWI one” is sufficient for a conviction under either subsection (a) or (b) (see now (a)(1) or (a)(2)), even though the evidentiary requirements of the subsections are different. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).

Municipal court erred and prejudiced defendant charged with driving while intoxicated (DWI) when it changed the charge to driving under the influence (DUI) on its own motion, because DUI is not a lesser-included offense of DWI and altering the charge violated § 5-65-107; and the circuit court erred in trying and convicting defendant of DUI following his appeal from the municipal court, a judgment it was not authorized to render under § 16-19-1105. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Defendant's right to a speedy trial under Ark. R. Crim. P. 30.1 was violated when his trial for driving while intoxicated in violation of § 5-65-103 commenced on the 600th day following his arrest. Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003).

Competency for Other Purposes.

Fact that defendant's blood alcohol level exceeded .10% at time of trial did not require conclusion under this section that he was too intoxicated to stand trial; this section provides that it is unlawful for any person to operate a motor vehicle if his blood alcohol level is .10 percent or more, but does not declare or imply that a person in such condition is incompetent for any other purposes. Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991).

Double Jeopardy.

Driving while intoxicated is an essential component of the crime of negligent homicide, since it is necessary to prove that defendant was driving while intoxicated in order to prove that he had committed negligent homicide; consequently, a defendant cannot be convicted of both offenses. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993).

Elements of Offense.

Trial court properly provided copies of defendant's prior DWI convictions to the jury for their examination because the fact of prior DWI convictions was an element of the crime of DWI, fourth offense, to be determined by the jury; although the trial court had to determine the admissibility of evidence of the prior convictions, it was up to the jury to determine that the evidence established that element of the offense. Fields v. State, 81 Ark. App. 351, 101 S.W.3d 849 (2003).

Defendant admitted that he had drunk a six-pack of beer prior to his arrest, and the breath-alcohol test results on the Intoximeter indicated that defendant was over the legal limit of alcohol in that the test's final result was .125. In addition to the trooper's observations and defendant's failing three field sobriety tests, this constituted substantial evidence of intoxication to support defendant's conviction for driving while intoxicated. under this section. The state was not obligated to prove that defendant was driving erratically or posed a danger on the road. Graham v. State, 2012 Ark. App. 90, 389 S.W.3d 33 (2012).

Evidence.

—In General.

Evidence to show intoxication held admissible. Canard v. State, 174 Ark. 918, 298 S.W. 24 (1927) (decision under prior law); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985); Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988).

Evidence held sufficient to support conviction. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985); Broyles v. State, 285 Ark. 457, 688 S.W.2d 290 (1985); Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985); Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987); Deshazier v. State, 26 Ark. App. 193, 761 S.W.2d 952 (1988); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992); Wilson v. State, 46 Ark. App. 1, 875 S.W.2d 510 (1994); Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997).

Proof of the blood alcohol content is not necessary for a conviction under subsection (a) (now (a)(1)), driving while intoxicated; however, such proof is admissible as evidence tending to prove intoxication. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985).

The erroneous admission of breathalyzer test results indicating that defendant's blood-alcohol level was 0.20% was prejudicial where, even though the trial judge said that he was not convicting defendant under subsection (b) (see now (a)(2)) but that the conviction was based instead upon subsection (a) (now (a)(1)), the judge did not say that he did not consider the test results. Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985).

The trial court did not err by admitting into evidence a breathalyzer log showing all tests performed on the machine for a period of five days, even though the defendant's blood alcohol content was the highest one recorded on it, where the log was admissible for the purpose of showing calibration of the machine and the defendant's test result, and the judge offered to admonish the jury to disregard the other test results or delete them, but the defendant rejected this offer. Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986).

Subsection (b) (see now (a)(2)) of this section states that it is unlawful for a person to operate a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood. However, § 5-65-204(a) states that percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989).

Officer's testimony was insufficient to establish that gaze nystagmus testing was reliable and generally accepted in the scientific community. Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989).

Evidence held insufficient to support conviction. Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990); Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992).

Where defendant was involved in a one-vehicle accident, had a strong odor of alcohol about his person, his speech was slurred, and the deputy sheriff who questioned defendant testified that shortly after the accident defendant appeared to be “very drunk, very intoxicated,” there was substantial evidence to sustain defendant's conviction without considering the result of the blood test. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990).

Evidence of DWI, second offense, held insufficient where the date of the prior offense was not on the docket sheet introduced into evidence. Wilson v. State, 46 Ark. App. 1, 875 S.W.2d 510 (1994).

Prosecutor's remark, “The reason we have this law is so people won't be out there killing our kids” fell well short of any error or prejudice requiring reversal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

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).

Although the police officers' testimony regarding their belief that defendant was intoxicated was described by the trial court as “subjective” evidence, it was the province of the jury to determine the weight and credibility of this evidence. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).

Where defendant was involved in a one-car accident, it was reasonable to infer that the defendant's impaired response could have been caused by his injuries, and, in light of this inference, the odor of alcohol was insufficient to support the conviction. Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998).

The State is not precluded as a matter of law from producing evidence of intoxication by ingestion of a controlled substance if the information did not specifically allege this method of intoxication. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).

A DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication. Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999).

State failed to present evidence showing that defendant had a blood-alcohol content of 0.10 percent or greater such that there was not substantial evidence to convict defendant under subsection (b) (see now (a)(2)); however, there was substantial evidence to convict him under subsection (a) (now (a)(1)) as he was intoxicated and operated a vehicle while intoxicated. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).

Although defendant was acquitted of refusal to consent to a breath test in the municipal court, where he appealed his conviction for driving while intoxicated (DWI) to the circuit court, the refusal was admissible as evidence showing knowledge or consciousness of guilt. Etheredge v. State, 89 Ark. App. 288, 202 S.W.3d 543 (2005).

Where defendant crossed the center line twice, the state trooper noticed that his breath smelled of alcohol, and he did not pass field-sobriety tests; within two hours of the traffic stop, defendant's breath-test results were more than 0.08. These facts alone were sufficient to support his conviction of driving while intoxicated pursuant to subsection (a) (now (a)(1)) of this section; defendant's claim that his alcohol level would have still been rising at the time of the offense and could have been peaking at the time of the tests was unsupported by the evidence. Hayden v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008).

—Confessions.

Pre-arrest statement by defendant charged with DWI that he was the driver of the vehicle was not a “confession” as that term is used in § 16-89-111(d), because defendant's statement contained no admission that defendant was intoxicated or that his blood alcohol level was in excess of the legal limit at the time of the accident; defendant's statement that he was the operator of the vehicle merely constituted an admission of one element of the offense of DWI, rather than a confession of the crime. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995).

—Intoxicated.

Any error by the circuit court in denying defendant's motion in limine to exclude evidence or his refusal to submit to breath testing was harmless as the evidence of his guilt was overwhelming; defendant was passed out at the steering wheel, he could not pass field sobriety tests, and he admitted to drinking alcohol earlier in the evening. Etheredge v. State, 89 Ark. App. 288, 202 S.W.3d 543 (2005).

If the refusal to be tested is admissible evidence on the issue of intoxication, as defined in § 5-65-102, 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 § 5-65-102, 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).

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).

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).

—Police.

This section does not require law enforcement officers to actually witness an intoxicated person driving or exercising control of a vehicle. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998).

Trial court erred in admitting evidence that the defendant failed a portable breath test and in admitting the result of a breathalyzer test taken later at a police station where the statutory requirements of §§ 5-65-206 and 5-65-204(d) regarding the administration of blood alcohol tests were not followed. Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003).

—Sentencing.

During the penalty phase of defendant's trial for driving while intoxicated in violation of this section and refusal to submit to a chemical test in violation of § 5-65-205, the trial court did not err by admitting evidence of his prior convictions for refusal to submit to a chemical test; the evidence was relevant to his sentencing as either character evidence or aggravating circumstances. Williams v. State, 2009 Ark. App. 554 (2009).

Evidence Sufficient.

Defendant's convictions were supported by substantial evidence where it was shown that (1) shortly after the incident, defendant had a blood-alcohol level of .23 percent, (2) defendant was driving the car that hit two women and narrowly missed a third, (3) just before the impact, defendant was witnessed to speed up and actually swerve the vehicle toward the women's path, and (4) defendant drove away after the impact. Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006).

Directed verdict was not appropriate because the testimony of a trooper that defendant was obviously impaired and that he had observed defendant's vehicle swerve on the highway, along with defendant's admission that he had consumed enough alcohol to register above the legal limit constituted substantial evidence sufficient to sustain defendant's conviction for third-offense driving while intoxicated. Heathman v. State, 2009 Ark. App. 601 (2009).

Sufficient evidence supported a finding defendant was intoxicated, as defined in § 5-65-102, for purposes of a charge of fourth offense driving while intoxicated in violation of subsection (a) (now (a)(1)) of this section, 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).

A police officer credibly testified that there was a noticeable odor of alcohol in defendant' car, that defendant was so unsteady on her feet that he was afraid to conduct field-sobriety tests for fear of her falling, and that she told him that she had consumed two beers after taking medication. Therefore, the evidence was sufficient to find her guilty of driving while intoxicated under subsection (a) (now (a)(1)) of this section. Foster v. State, 2012 Ark. App. 640 (2012).

Trial court properly denied defendant's motion for a directed verdict because there was substantial evidence supporting his conviction for operating a motor vehicle with a breath-alcohol concentration of .08 or more where the jury chose to believe that the breathalyzer machine used to test defendant's blood alcohol level was reliable after hearing evidence concerning the reliability of breathalyzer machines, in general, and the reliability of the machine used to test defendant, in particular, and defendant's breathalyzer-test results were above the legal limit. Perrigen v. State, 2015 Ark. App. 42 (2015).

Sufficient evidence supported defendant's conviction of driving while intoxicated, under subdivision (a)(1) of this section, where he manifestly failed to submit to a breathalyzer test, and the officer testified that defendant emitted a strong odor of alcohol and had staggered and appeared confused as to his location and where he actually lived. Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869 (2017) (decided under the pre-2015 version of this section).

Horizontal Gaze Nystagmus Test.

Using the horizontal gaze nystagmus test to identify a precise blood alcohol content under subsection (b) (see now (a)(2)) is vastly different from testing to indicate some alcohol in the system for purposes of intoxication under subsection (a) (now (a)(1)). Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

Where the horizontal gaze nystagmus test administered by police officer was not used to quantify a precise percentage of blood alcohol content but rather to show some indication of alcohol consumption in conjunction with other field sobriety tests, the testimony regarding the results of the test was properly admitted. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

Instructions.

Under §§ 16-89-126(c) and 5-4-103, the defendant was entitled to have a jury fix his sentence for his conviction of driving while intoxicated, and his proffered jury instruction to this effect should have been given. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Defendant was not prejudiced by trial court's refusal to instruct the jury to return separate verdicts for subsections (a) and (b) (see now (a)(1) and (a)(2)) since the penalty would be the same whether the act is violated by conduct described by (a) or (b); the two conditions are simply two different ways of proving a single violation. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).

Trial court did not err in rejecting a DUI defendant's proffered jury instructions because the instructions' omission of any reference to chemical testing or chemical analysis failed to take into account this section's incorporation of § 5-65-204, which describes “the chemical analysis of a person's blood, urine, or breath.” The model jury instruction represented a more accurate reflection of the law, although it did not address the 2001 amendment to this section, which had eliminated the phrase “as determined by a chemical test.” Graham v. State, 2012 Ark. App. 90, 389 S.W.3d 33 (2012).

Intoxicated.

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 present § 5-65-102 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).

Evidence held sufficient to establish that the defendant was intoxicated where (1) 2 police officers smelled alcohol on the defendant's breath, (2) the defendant admitted that he consumed alcohol, and (3) although one officer could not recall the specifics of the field sobriety tests he conducted, he indicated that he administered 3 such tests and that the defendant failed all 3. Felgate v. State, 63 Ark. App. 76, 974 S.W.2d 479 (1998).

Evidence of intoxication held sufficient where the blood alcohol level shown by a breathalyzer test was .104, notwithstanding that the officer who administered the breathalyzer test testified that the breathalyzer machine had a plus or minus factor of .01 for the external check, and notwithstanding the contention that the defendant's blood alcohol level could thus have been as low as .094, since the officer also testified that the .01 factor had nothing to do with a personal sample. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998).

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).

Sufficient evidence supported defendant's conviction for driving while intoxicated (DWI) under subsection (a) (now (a)(1)) of this section 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).

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).

Legislative Intent.

It is evident from the history of § 27-49-102(2) that the legislature intended that the offense of DWI not be restricted to the highways of this state; the legislature has consistently intended that DWI constitutes a criminal offense whether it occurs on highways or on private property. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993).

Lesser-Included Offenses.

Violation of the implied consent law is not a lesser-included offense of driving while intoxicated, and the offense of driving while intoxicated is not a lesser-included offense of violation of the implied consent law. Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996).

Driving under the influence (DUI) is not a lesser-included offense of driving while intoxicated, in that DUI requires an additional element of proof of the defendant's age and a different level of intoxication. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Mental State.

The Omnibus Driving While Intoxicated Act of 1983 is valid even though it does not require a culpable mental state. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).

Circuit court erred in ruling that the Omnibus DWI Act of 1983 is a strict liability statute that does not require proof of a culpable mens rea; a culpable mental state has to be imputed to the DWI offense through the plain language of § 5-2-203, and the offense is not subject to the statutory exception in § 5-2-204(c)(2) because the offense is included in the Criminal Code. Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331 (2015) (decision under prior law).

Defendant failed to demonstrate reversible error in the trial court's denial of his motion to dismiss a driving while intoxicated (DWI) charge. The appellate court did not need to discuss whether the trial court erred in deciding that, in May 2013, DWI was a strict-liability offense because the trial court found in the alternative that defendant did have a culpable mental state, namely, that he acted recklessly. Tackett v. State, 2017 Ark. App. 271, 523 S.W.3d 360 (2017).

Although the circuit court in a bench trial incorrectly held that the applicable culpable mental state was strict liability in a DWI case that did not involve alcohol, defendant's conviction was affirmed where the circuit court made an alternative finding under the correct standard that the State had submitted proof sufficient to satisfy reckless conduct under §§ 5-2-203 and 5-2-202; the testimony of the officer, the pharmacist expert, and the defendant provided sufficient evidence to support a finding that defendant acted recklessly in taking prescribed barbiturates (for her migraine) and then operating a motor vehicle. Cordero v. State, 2019 Ark. App. 484, 588 S.W.3d 369 (2019).

Operation or Control of Vehicle.

Defendant held to be in control of vehicle. Walker v. State, 241 Ark. 396, 408 S.W.2d 474 (1966) (decision under prior law); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985); Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988).

The defendant held not to be in actual control of his vehicle. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984) (decision under prior law).

There are three ways to prove operation of a motor vehicle: (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992).

In a prosecution for driving while intoxicated, actual control of a vehicle by the defendant may be proved by circumstantial evidence; the officer need not see the driver operating the car in order to have reasonable cause to believe he was doing so. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985).

Where there was evidence that immediately after the impact, the defendant was in the driver's seat behind the steering wheel, that evidence alone constituted substantial evidence to support the finding that he was driving seconds before the time of impact. Tumbs v. State, 290 Ark. 214, 718 S.W.2d 105 (1986).

Investigatory stop of vehicle held justified. Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987).

Where defendant conceded that he was intoxicated, and the officer testified that defendant was found in the driver's position with the engine actually running, the jury could properly have concluded that he was in actual physical control of a motor vehicle. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989).

It was error for the court to instruct the jury that it must find against defendant on the issue of control if it found that circumstances existed from which an inference of this element could be drawn. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989).

To be guilty of DWI, it does not have to be shown that a defendant was driving the vehicle or driving the vehicle in a hazardous or negligent manner; in fact, it only requires a showing that the defendant was in actual physical control of the vehicle while intoxicated. Beasley v. State, 47 Ark. App. 92, 885 S.W.2d 906 (1994).

Where defendant's hands were on the steering wheel of a parked vehicle with the motor running and the lights on, defendant was in actual physical control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

Evidence held sufficient to establish that defendant was in actual physical control of a motor vehicle where defendant was in the driver's side of a parked car with its engine running; the evidence was sufficient to permit the fact-finder to infer that the defendant had driven the car shortly before her arrest. Beckner v. State, 49 Ark. App. 56, 896 S.W.2d 445 (1995).

Evidence that defendant either operated or was in actual physical control of a vehicle held sufficient where defendant was discovered by police walking away from a one-vehicle accident involving his own truck for which he possessed the keys in his pocket, and there was testimony that defendant had been driving his truck not long before his encounter with the police. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998).

Defendant was in actual physical control of a vehicle where an officer found the defendant on the driver's side of the running vehicle and slumped over in the seat apparently unconscious, notwithstanding the defendant's assertion that he had a designated driver and went out to warm up the vehicle because it was cold. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998).

A defendant was not in actual physical control of a vehicle where an officer found the defendant asleep, intoxicated, and sitting behind the steering wheel, with the driver's side window rolled down, the motor and the car lights off, and the keys to the vehicle on the dashboard. Stephenson v. City of Fort Smith, 71 Ark. App. 190, 36 S.W.3d 754 (2000).

Where evidence showed that, at the time officers encountered defendant in his vehicle, defendant had been drinking, his foot was on the brake pedal, but the keys were not in the ignition as defendant turned off the engine by use of the remote-start button, the state failed to prove that defendant was in “actual physical control” of the vehicle and his conviction for driving while intoxicated was reversed. Rogers v. State, 94 Ark. App. 47, 224 S.W.3d 564 (2006).

Court rejected defendant's claim that the trial court erred in denying defendant's motion for a directed verdict in her driving while intoxicated case; direct eyewitness testimony and circumstantial evidence proved that defendant was the driver, and given that an officer saw the brake light flash on defendant's car before she exited from the driver's side with the keys in her hand, this constituted substantial evidence to establish that defendant was the driver. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).

While a police officer did not see defendant driving, when the officer arrived at the scene of a reckless-driver call, defendant was slumped over the steering wheel, the motor was running, and a strong odor of alcohol was coming from defendant; thus, the evidence was sufficient to find defendant guilty of driving while intoxicated under this section. Cooley v. State, 2011 Ark. App. 175 (2011).

State presented sufficient evidence that DWI defendant drove his motorcycle on the morning of the divorce proceeding, as he testified to doing so, plus a recording showed defendant admitting to an officer that he drove his motorcycle that day, and the officer testified that the motorcycle felt warm when he felt it that day. Reep v. State, 2015 Ark. App. 662, 476 S.W.3d 210 (2015).

Place of Operation.

One may be convicted of DWI while operating a vehicle on a private roadway. Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993).

This section contains no location or geographic element, and one cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway. Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993).

The offense of DWI can be committed on the parking lot of a private club. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993).

Portable Breath Test.

Evidence of the results of a portable breath test are not admissible as substantive evidence absent proof of their reliability; therefore, the trial court did not err in refusing to allow defendant to admit the results into evidence in a driving while intoxicated case. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003).

Court did not err by denying the motion to suppress; officer had reasonable suspicion that defendant was driving while intoxicated before he administered the PBT because defendant admitted he had been drinking, the officer saw defendant driving, and the officer noticed that defendant smelled of intoxicants; there was probable cause to arrest even without consideration of the PBT results because defendant told the officer that he had been drinking, his eyes were bloodshot and watery, and he smelled of intoxicants and failed two field-sobriety tests. Fisher v. State, 2013 Ark. App. 301, 427 S.W.3d 743 (2013).

Probable Cause.

Defendant's arrest was supported by probable cause that he was driving under the influence in violation of this section, based upon the odor of intoxicants and the performance on the field sobriety test, and a search incident to defendant's arrest was reasonable. In light of reports from citizen-informants, an officer reasonably approached defendant's car to investigate whether defendant was about to drive while intoxicated. Stewart v. State, 2010 Ark. App. 9, 373 S.W.3d 387 (2010).

Even if the stop started when the officer knocked on appellant's window, the officer had reasonable suspicion that appellant was endangering other officers on the street, and the officer had authority to require appellant to stop; when the odor of alcohol became apparent, the officer had reasonable suspicion to ask appellant to get out of the vehicle, and as there was probable cause to arrest him for driving while intoxicated, the trial court did not err in denying appellant's motion to suppress. Ward v. State, 2012 Ark. App. 649 (2012).

Trial court believed an officer's testimony that the encounter was no more than the officer trying to direct traffic and appellant's vehicle on a congested and dark street amidst a crime scene where officers’ safety was at issue, and while protecting the officers was a specific explanation for knocking on appellant's window, the odor of intoxicants and his appearance gave the required suspicion for an investigation into a potential driving while intoxicated offense; under Ark. R. Crim. P. 3.1 the officer then had a duty to investigate further because it is unlawful for any person who is intoxicated to operate or be in actual physical contract of a motor vehicle. Ward v. State, 2012 Ark. App. 649 (2012).

DWI defendant's motion to suppress was properly denied because probable cause existed for the traffic stop; although the video did not clearly show defendant's car crossing the center line, the police officer testified that defendant's vehicle weaved and crossed the center line a number of times. The officer's testimony, combined with the video account, established probable cause that defendant had violated § 27-51-301(a). Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869 (2017).

Prohibited Conduct.

Under subsection (b) (see now (a)(2)), intoxication is not an element of the offense; driving with a blood alcohol content of .10% or more is the prohibited act; stated differently, it is a violation per se to drive with a blood alcohol content of .10% or more. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).

Right to Counsel.

Because trial court had discretion in sentencing defendant to jail for first offense DWI, he was not accused or convicted of a “serious crime,” and his right to counsel did not attach at the trial level. Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990).

First offense DWI is not a serious crime by which failure to perfect an appeal would permit a claim of ineffective assistance of counsel to prevail, and failure of defendant's counsel to perfect his appeal is not a denial of his right to effective assistance of counsel. Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990).

Notwithstanding Ark. R. Crim. P. 4.5, the Court of Appeals of Arkansas held that defendant had no right to consult with counsel before taking a breathalyzer test following a traffic stop that led to his arrest and conviction for driving while intoxicated in violation of this section. Lewis v. State, 2013 Ark. App. 39 (2013).

Separate Offenses.

The two subsections of this section do not state two separate offenses that require different elements of proof; the penalty is the same whether the section is violated by conduct proscribed by either subsection, and thus the two conditions are simply two different ways of proving a single violation. Johnston v. City of Fort Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).

If the state proceeded against defendant first on driving while intoxicated (DWI) and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide; however, the same result does not apply when the two offenses are tried simultaneously. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).

Defendant's manner of driving, which included speeding and driving left of center, violated city's hazardous driving ordinance, while defendant's act of driving his vehicle while being intoxicated violated this section; it is clear that these offenses are two separate offenses for the purpose of double jeopardy analysis since each statutory provision requires proof of a fact which the other does not. Beasley v. State, 47 Ark. App. 92, 885 S.W.2d 906 (1994).

Cited: State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984); Lovell v. State, 283 Ark. 434, 681 S.W.2d 395 (1984); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985); Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985); Dacus v. State, 16 Ark. App. 222, 699 S.W.2d 417 (1985); Hoover v. Thompson, 787 F.2d 449 (8th Cir. 1986); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987); Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988); Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991); Smith v. State, 55 Ark. App. 97, 931 S.W.2d 792 (1996); Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996); Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (1996); Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); State v. Aud, 351 Ark. 531, 95 S.W.3d 786 (2003); Tiller v. State, 2014 Ark. App. 431, 439 S.W.3d 705 (2014); Papageorge v. Tyson Shared Servs., 2019 Ark. App. 603, 590 S.W.3d 800 (2019).