{ "id": 6139496, "name": "Adrian WEISENFELS v. STATE of Arkansas", "name_abbreviation": "Weisenfels v. State", "decision_date": "2008-04-30", "docket_number": "CA CR 07-1121", "first_page": "191", "last_page": "196", "citations": [ { "type": "official", "cite": "102 Ark. App. 191" }, { "type": "parallel", "cite": "283 S.W.3d 622" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "328 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50384 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0536-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-62-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-65-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "parenthetical": "a" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "38 Ark. App. 18", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136407 ], "weight": 5, "year": 1992, "pin_cites": [ { "parenthetical": "holding that an officer's testimony regarding his training that dealt in depth with the HGN test was sufficient to establish him as an expert witness qualified to discuss the details and results of the test" } ], "opinion_index": 0, "case_paths": [ "/ark-app/38/0018-01" ] }, { "cite": "29 Ark. App. 83", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137966 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "87" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ark-app/29/0083-01" ] } ], "analysis": { "cardinality": 622, "char_count": 13164, "ocr_confidence": 0.78, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17490382643930205 }, "sha256": "dc134b93fd71c1a9167d40affe5d2c4605949092d3f7401d1fe896b08fc4c129", "simhash": "1:8677218502cb22e1", "word_count": 2124 }, "last_updated": "2023-07-14T21:30:35.503442+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught and Heffley, JJ., agree." ], "parties": [ "Adrian WEISENFELS v. STATE of Arkansas" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nA jury found appellant, Adrian Weisenfels, guilty of driving while intoxicated. On appeal, he first contends that the circuit court abused its discretion in refusing to grant a mistrial when a police officer testifying for the State attempted to quantify appellant\u2019s blood-alcohol level based on appellant\u2019s performance of the horizontal gaze nystagmus (HGN) test. Second, he contends that the circuit court abused its discretion in giving a jury instruction on expert-witness testimony when no expert testified at trial. We affirm.\nAt the jury trial, the State presented the testimony of Deputy Steven Walker of the Washington County Sheriffs Department and Officer Mike Biddle of the Elkins Police Department. Walker testified that on September 23, 2006, he observed the car driven by appellant \u201cspeeding up, slowing down, every time the vehicle would speed up he weaved in his lane a little more, a time or at least one time I noticed that he crossed the center line, in my report I put two feet.\u201d He also testified that appellant at one point was driving thirty-five miles per hour in a fifty-five mile per hour zone and that this was significant because it was a \u201cgood indicator that it\u2019s possibly a DWI driver.\u201d He noted that after turning on his emergency lights, appellant drove for approximately two hundred yards; that rather than pulling off onto the shoulder, appellant stopped his vehicle straddling the fog line; that when appellant exited the car, he stumbled getting out and was unsteady on his feet; that the odor of intoxicants was coming from the inside of the car; and that appellant was asked twice for proof of insurance. When asked, appellant stated that he had not drunk anything in about two hours.\nBiddle testified that he arrived at the scene and had appellant perform various field-sobriety tests, including the HGN test. Biddle noted that there were six \u201cclues\u201d in the test. Following Biddle\u2019s testimony regarding appellant\u2019s performance on this test, the State asked whether there was \u201ca pass/fail or is there a scoring on this test,\u201d and Biddle replied, \u201cYes, there\u2019s a pass/fail, four or more of those symptoms indicate a blood-alcohol content of zero point zero eight hundreds for weigh \u2014 .\u201d Counsel for appellant interrupted and moved for a mistrial, arguing that this \u201cwas not proper testimony,\u201d that Biddle \u201cwas asked about clues, he wasn\u2019t asked about blood-alcohol percent, that\u2019s absolutely prohibited,\u201d and that \u201cthere\u2019s a case right on point on that and he cannot testify to any percentage of what the clues indicate the percentage of blood[-alcohol] content.\u201d The circuit court stated that the \u201cresponse was not responsive to the question and if you\u2019re requesting an admonition to the jury I will certainly give that.\u201d Counsel again moved for a mistrial, which the court denied, and appellant requested an admonition to the jury. The court then instructed the jury to \u201cdisregard the last response of the witness, it was not responsive to the question.\u201d Biddle then testified that in grading appellant\u2019s performance, he observed six \u201cclues.\u201d\nBiddle also had appellant perform the walk-and-turn test, showing six of eight clues, and the one-leg stand test, showing two of four clues. He also noted that appellant stumbled getting out of his car and had trouble standing in one place; his eyes were red, glassy, bloodshot, and watery; his breath smelled of intoxicants; and his speech was slurred. Appellant admitted that he had two drinks earlier in the day. Biddle found beer and an almost empty vodka bottle in the trunk. Biddle arrested appellant for driving while intoxicated. Appellant was unable to complete a BAC Datamaster test at the police department.\nCiting Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989), appellant argues that Biddle\u2019s testimony manifestly prejudiced him because it provided the jury with \u201ca gauge by which to quantify the level of alcohol\u201d by using the HGN test when there were no results from any type of chemical testing. In Middleton, a police officer testified that appellant\u2019s performance on the HGN test \u201cindicated an'alcohol rating of .15 or .16.\u201d Id. at 87, 780 S.W.2d at 583. The Middleton court noted that a jury instruction was given defining the offense of driving while intoxicated as being in control of a vehicle with an alcohol level of. 10 or above, and the only evidence of the defendant\u2019s alcohol level was the officer\u2019s testimony based on the HGN test. The court concluded that any probative value that the HGN test results may have had to show an alcohol level in excess of .10 was substantially outweighed by the potential for unfair prejudice.\nIn this case, the question on appeal is whether the circuit court abused its discretion in refusing to grant a mistrial. A mistrial is an extreme remedy that should only be granted when there has been an error so prejudicial that justice could not be served by continuing the trial. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992). Because of the circuit court\u2019s superior position to determine the possibility of prejudice, the court is vested with considerable discretion in acting on a motion for a mistrial, and the court\u2019s decision will not be reversed absent an abuse of discretion. Id.\nThe driving-while-intoxicated statute provides that \u201c[i]t is unlawful. . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.\u201d Ark. Code Ann. \u00a7 5-65-103 (a) (Repl. 2005). The term \u201cintoxicated\u201d is defined as \u201cinfluenced or affected by the ingestion of alcohol ... to such a degree that the driver\u2019s 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.\u201d Ark. Code Ann. \u00a7 5-62-102(2) (Repl. 2005). Alternatively, \u201c[i]t is unlawful. . . for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person\u2019s breath or blood was eight-hundredths (0.08) or more.\u201d Ark. Code Ann. \u00a7 5-65-103(b) (Repl. 2005).\nHere, the officer\u2019s answer was not responsive to the question. Moreover, the officer did not testify that appellant\u2019s blood-alcohol level meant that appellant failed the HGN test. Rather, the officer testified that the clues indicated a certain blood-alcohol level. Also, the officer did not suggest that based on the blood-alcohol content, appellant was intoxicated for the purposes of subsection (a), or was guilty of driving while intoxicated for the purposes of subsection (b). Furthermore, in contrast to Middleton, there is nothing in the record indicating that the jury was instructed on whether appellant could be found guilty of driving while intoxicated based on his blood-alcohol content under subsection (b), and the jury instructions were not made part of the record. The only jury instruction the State discussed during closing argument involved the definition of \u201cintoxicated,\u201d which goes to a finding of guilt under subsection (a).\nMoreover, the circuit court admonished the jury to disregard the officer\u2019s remark, and an admonishment may be sufficient to cure prejudice. See Brown, supra. In Brown, an officer was asked what he meant when he stated that the defendant appeared \u201cvery intoxicated,\u201d and he replied \u201c.15, .14, .15.\u201d The Brown court noted that there was no reference to blood-alcohol content and no attempt to bolster the officer\u2019s conclusion by linking it to the results of a field-sobriety test, and the court concluded that the jury admonition to disregard the testimony cured any resulting prejudice. In contrast to Brown, the officer\u2019s testimony here mentioned blood-alcohol content and linked it to the HGN test. But given that the officer\u2019s testimony did not equate appellant\u2019s blood-alcohol level with failing the HGN test, or with a finding that appellant was intoxicated, or with the conclusion that he was guilty of driving while intoxicated; that the record does not reflect that the circuit court instructed the jury that it could find appellant guilty of driving while intoxicated based on his blood-alcohol content; and that the circuit court instructed the jury to disregard the officer\u2019s testimony, the circuit court did not abuse its discretion in refusing to grant a mistrial.\nAlso at trial, appellant\u2019s counsel objected to the giving of an instruction on expert-witness testimony, arguing that there was \u201cno testimony from an expert in this case.\u201d The State countered, arguing that \u201cto the extent the officers have testified based on their training and experience that they had opinions on whether or not the guy was intoxicated per the statute as to the danger, I think that they qualify as expert under that statute.\u201d The circuit court gave the instruction.\nOn appeal, appellant argues that the circuit court erred giving the jury an expert-witness instruction, because there was no foundation of essential facts qualifying the police officers as experts and there was no evidence presented that could not be understood or comprehended by the average juror. He also asserts that he was prejudiced because the instruction \u201conly served to unfairly bolster the credibility of the officers beyond that of a simple lay opinion.\u201d The issue on appeal, however, is whether the court abused its discretion in giving the expert-witness instruction.\nArkansas Rule of Evidence 702 provides that \u201c[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\u201d If some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). Whether a witness qualifies as an expert is a matter within the circuit court\u2019s discretion, and that decision will not be reversed absent an abuse of that discretion. Id.\nWalker, who stopped appellant\u2019s car, testified that he had been a certified police officer since September 2001, and after becoming certified, had been employed in law enforcement. He also testified that he went to \u201cstandardized field sobriety school\u201d and was a \u201cstandardized field sobriety instructor\u201d and a drug recognition expert. He further testified that he had made \u201cabout two hundred\u201d stops involving persons driving while intoxicated. He testified that he pulled appellant\u2019s vehicle over because he \u201cwas in fear of other traffic on the road, he might be a danger to them or himself.\u201d He further opined that after observing appellant\u2019s driving and appellant\u2019s conduct after the stop, appellant was a danger to himself or others on the roadway.\nBiddle, who conducted the field-sobriety tests, testified that he was a certified law enforcement officer, attended the law enforcement training academy and graduated in 1999, had attended a class on standardized field sobriety in 2006, attended a class on the operation of the BAC Datamaster machine and was a licensed operator of the machine, and had made approximately fifty traffic stops involving persons operating a vehicle while intoxicated by alcohol. Biddle concluded that, after considering the results of the field-sobriety tests, his contact with appellant, and appellant\u2019s attempts to take the Datamaster test, appellant \u201cwas a danger not only to himself but to his passengers and other people on the roadway\u201d and could not control a vehicle.\nBoth Walker and Biddle testified regarding their respective training regarding field-sobriety tests and extensive experience in making traffic stops involving drivers who were driving while intoxicated. The State had to prove that appellant was intoxicated, which required proof that appellant presented a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians. Both officers concluded that appellant was a danger to himself and others on the roadway. There was a reasonable basis from which it can be said the officers had knowledge beyond that of ordinary knowledge, and the officers\u2019 specialized training and knowledge aided the jury in determining this fact in issue, that is, whether appellant was a danger to himself and others. Accordingly, the circuit court did not abuse its discretion in giving the expert-witness instruction, as their testimony was admissible as expert testimony. See Brown, supra (holding that an officer\u2019s testimony regarding his training that dealt in depth with the HGN test was sufficient to establish him as an expert witness qualified to discuss the details and results of the test).\nAffirmed.\nVaught and Heffley, JJ., agree.", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Witt Law Firm, P.C., by: Ernie Witt, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Farhan Khan, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Adrian WEISENFELS v. STATE of Arkansas\nCA CR 07-1121\n283 S.W.3d 622\nCourt of Appeals of Arkansas\nOpinion delivered April 30, 2008\nWitt Law Firm, P.C., by: Ernie Witt, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Farhan Khan, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0191-01", "first_page_order": 227, "last_page_order": 232 }