Rogers v. State

690 S.W.3d 465

2024 Ark. App. 340

Chasity Rashelle ROGERS, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-629

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered May 29, 2024

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-22-561], HONORABLE JOSH FARMER, JUDGE

Digby Law Firm, by: Bobby R. Digby II and Mathew R. Ingle, for appellant.

Tim Griffin, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

BART F. VIRDEN, Judge

₁Chasity Rashelle Rogers appeals her conviction by the Saline County Circuit Court for driving while intoxicated (DWI), sixth offense. On appeal, Rogers argues that there is insufficient evidence to support her conviction, and the circuit court committed reversible error in denying her motion to suppress and by admitting evidence of her prior convictions. We affirm and remand for correction of the sentencing order.

I. Relevant Facts

On July 11, 2022, Rogers was charged with DWI. On July 19, Rogers moved to suppress statements she made to police after her arrest or detention, alleging that the police did not have probable cause to arrest her. After a hearing on the matter, the court denied the motion.

₂The bench trial took place on June 16, 2023. Officer Carson Collins testified that on May 27, 2022, he and Officer Zachery Wisenor responded to a 911 call about an unresponsive person in the Walmart parking lot. When they arrived with their vehicle’s blue lights flashing, they were flagged down by a family who explained that they had called 911 after they tried to wake Rogers but could not do so. Local firefighters and the ambulance service responded as well. Collins stated that he and Wisenor banged on Rogers’s windows but did not get any response. Wisenor unlocked the doors, and Collins opened Rogers’s door. Rogers was in the driver’s seat, wearing the seat belt, and the engine was running. Collins shook her a couple of times, and she slowly awoke. Rogers was disoriented and did not respond to requests to turn off the engine, so Collins leaned in and turned off the engine. Wisenor asked Rogers if she knew where she was, and she stated that she was in Benton but did not respond to further questioning about her specific location or what day it was, and she did not know the time. After Rogers was medically cleared, Collins told Rogers it was time for a sobriety test, to which Rogers replied, "I can’t walk straight even if I was sober."¹ Rogers explained that she had been at a friend’s house earlier and "tried to cut myself off in enough time where I could drive home, or what else, and I needed to run by Walmart real quick, because that’s what I needed to do, and I guess everything just made me drop off." She told the officers, "I am a lightweight and I don’t drink very often, so." Collins asked her if she wore glasses or contacts, and she responded that she wore glasses, but she ₃had no medical condition that would prevent her from following the tip of his finger with her eyes. Both Collins and Wisenor explained the Horizontal Gaze Nystagmus (HGN) test to Rogers, and Wisenor initially corrected Collins stating, "You started the wrong way." In response, Collins "did an extra pass" to ensure the test was administered fairly. Next, Collins explained and performed the Vertical Gaze Nystagmus (VGN) test. For both tests, the officers repeatedly explained to Rogers that she was supposed to follow Collins’s fingertip with only her eyes before she understood the instructions. Collins explained that the HGN and the VGN tests show if there is a high level of an intoxicating substance in the body. He stated that Rogers displayed six out of six clues for intoxication during the HGN test, though there are conditions or circumstances that can cause a person who is not intoxicated to fail the HGN test, including flashing blue lights on the police vehicle. Collins stated that the HGN is 88 percent accurate if done correctly. Collins recalled that Rogers swayed on her feet when standing. He decided to take Rogers to the station to perform further field sobriety testing because the station provided a more controlled environment, which would improve Rogers’s chance to pass the tests. At the police station, Collins explained the walk and turn test (WAT), which he stated has a 79 percent accuracy rate, and then demonstrated how to do it. Rogers stated that she had poor balance and had broken her feet in the past. Rogers performed the test, and Collins observed five out of eight clues of impairment. Rogers completely stepped off the line somewhere around step eight, but Collins did not make a note of it in his report. Rogers showed zero clues of impairment during the one leg stand test (OLS), which Collins explained has an 83 percent accuracy rate. After testing, Collins ₄gave Rogers the "Arkansas Statement of Rights" form and read it aloud to her while she followed along. The form, which Rogers signed and initialed, provided that Collins had requested a breathalyzer test and a urine test, and had Rogers agreed to those tests. Rogers declined further blood testing. Rogers stated that she had taken her prescribed medication, alprazolam, "not too long ago, but I’m a light weight." She explained that she usually does not take alprazolam when she drives, but she was under a lot of pressure at work and knew there were outstanding warrants for her arrest. On cross-examination, Collins stated that he saw clues of Rogers’s impairment, including slurred speech, inability to comprehend simple questions or do simple tasks, watery and glassy eyes, impaired ability to walk, and swaying on her feet. Among clues not noted were the odor of alcohol, "fumbling fingers," alcohol or drug containers, and hanging on to the frame of the door when she exited the vehicle. Collins testified that he did not search Rogers before he put her into the patrol car, and he did not find a key.fob inside the car or on her person. He could not recall whether he found the vehicle’s key fob that evening, but he agreed that it was a possibility that the vehicle could have been started remotely, and it was possible that if it was started remotely, the vehicle could not be put in gear.

Kristin Mauldin, the chief forensic toxicologist at the Arkansas State Crime Laboratory (ASCL), testified that the lab received a urine sample, which tested negative for all forms of alcohol. A urine immunoassay test was positive for the benzodiazepine and amphetamine drug classes. The general toxicology test showed the presence of alprazolam, amphetamine, doxylamine, methamphetamine, methorphan, nicotine, phentermine, and ₅promethazine in Rogers’s urine. Mauldin explained that the test was not a quantitative analysis, and it detected only the presence of the drug in the urine and not the amount of the drug. Mauldin explained that urine is a waste product that measures only what was previously in, and eliminated from, the body. She testified that no blood sample was submitted, and "blood is a great indicator of what is circulating through the blood stream." Mauldin also explained that the lab would not have done quantitative testing on blood because "we reserve any kind of quantitative testing for our medical-examiner cases in an overdose situation or that type of case," and for DWI cases, qualitative testing is standard procedure.

The State concluded its case-in-chief, and Rogers moved to dismiss the charge, arguing that there was insufficient evidence of intoxication because the HGN test was not performed correctly, and when Officer Collins realized he had not done the test correctly, he did not start over. Rogers contended it was possible that the flashing lights affected the accuracy of the exam, and it was not clear whether she was wearing contacts. Rogers asserted that the WAT test was not recorded, Collins stated that he did not make any notes regarding the WAT test, and Rogers stepped off the line only one time. Collins also testified that Rogers passed the OLS test, which is the more accurate of the tests; thus, the State did not prove "beyond a reasonable doubt that she was intoxicated or impaired to such a degree as to be a substantial danger to herself." The urine test did not show that she was under the influence of any drugs or alcohol, and the State did not prove that she was in physical control of the vehicle or that the car was operable. There was no evidence presented regarding how long ₆she had been in the. Walmart parking lot, no intoxicants were found on her person or in her car, and the State did not obtain video of the parking lot.

The State responded that the immunoassay? test showed that Rogers had barbiturates and benzodiazepine in her system. The general toxicology showed alprazolam, methamphetamine, and phentermine. The State argued that Rogers was buckled into the seat of her vehicle, the engine was running, and she was clearly impaired because she did not respond to loud knocking on the window. She visibly swayed while standing, garbled her speech, and admitted drinking and that she was a "lightweight." Rogers also admitted taking alprazolam and driving to Walmart, which she acknowledged she should not do. Moreover, the State asserted, even though Collins made some mistakes administering the field sobriety test, it does not discount every clue he saw, and there was sufficient evidence of intoxication without the field sobriety tests. The State argued that it had presented sufficient evidence of Rogers’s control over the vehicle because the vehicle was running and Rogers was in the driver’s seat. The court denied the motion. The defense rested and renewed the motion to dismiss.

The court found Rogers guilty of DWI, sixth offense. Relying on her statement in the video that she drove the vehicle to Walmart and the fact that the engine was on when police arrived, the circuit court found there was sufficient evidence that she was in control of the vehicle. The court found that the State had met its burden of proof that...