                                 Cite as 2017 Ark. App. 271

                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                       No. CR-16-693

                                                  Opinion Delivered   MAY 3, 2017
MATTHEW A. TACKETT
                               APPELLANT          APPEAL FROM THE PULASKI
                                                  COUNTY CIRCUIT COURT, FIRST
V.                                                DIVISION
                                                  [NO. 60CR-14-705]
STATE OF ARKANSAS
                                APPELLEE          HONORABLE JAMES LEON
                                                  JOHNSON, JUDGE

                                                  AFFIRMED

                          N. MARK KLAPPENBACH, Judge

       Appellant Matthew Tackett appeals his conviction for first-offense driving while

intoxicated (DWI) following a bench trial in Pulaski County Circuit Court.1 Appellant argues

that the trial court erred in finding that the State was not required to prove a culpable mental

state in order to obtain a conviction for first-offense DWI committed in May 2013,

necessitating reversal and remand. Appellant argues that the supreme court decision in Leeka

v. State, 2015 Ark. 183, 461 S.W.3d 331, interpreted the DWI statute to require the

establishment of a culpable mental state (purposely, knowingly, or recklessly). The State

counters that the trial court determined that a culpable mental state was not required but

nonetheless found appellant to have acted “recklessly” with regard to DWI such that the State

proved a culpable mental state, mandating affirming appellant’s conviction. We affirm.


       1
        Tackett was also convicted of refusal to submit to a chemical test, careless and
prohibited driving, not wearing a seat belt, parking on the highway, and failing to have proof
of insurance. Tackett does not appeal those convictions.
                                 Cite as 2017 Ark. App. 271

       A brief examination of the trial court proceedings and the evidence is in order prior

to our analysis of the issue presented on appeal. At approximately 4:30 a.m. on May 12,

2013, an Arkansas State Trooper was on patrol in North Little Rock and came upon

appellant’s vehicle parked, with the engine running, on the southbound on-ramp of Highway

67. Appellant was behind the wheel, unresponsive and either unconscious or asleep. He was

not wearing a seat belt. As appellant regained consciousness and interacted with the trooper,

appellant exhibited many signs typical of intoxication: slurred speech, bloodshot and watery

eyes, unsteadiness on his feet, and a strong odor of intoxicants about his person. Appellant

testified that he had consumed alcohol (vodka) and a pain medication (hydrocodone with

acetaminophen) that night but said that he did not remember getting in the car, driving,

interacting with the trooper, or being arrested.

       Appellant’s attorney argued that because appellant claimed that he had no memory of

driving, he lacked the required mental state in order to convict him of DWI. Defense counsel

pointed to Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331, in which the supreme court had

interpreted the criminal code to require that for purposes of DWI as defined in 2013, a

culpable mental state had to be proved. In Leeka, the supreme court held that Ark. Code

Ann. § 5-65-103 (the DWI statute) did not contain an express requirement of a culpable

mental state, but pursuant to Ark. Code Ann. § 5-2-203(b), a culpable mental state was

nonetheless required.2 Defense counsel argued that the Leeka case, which had considered a


       2
         Arkansas Code Annotated section 5-2-203(b) provides in relevant part that “if the
statute defining an offense does not prescribe a culpable mental state, a culpable mental state

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2013 DWI conviction, controlled the present case. The State responded by arguing that the

DWI statute had recently been amended in 2015 to specifically designate DWI a strict-liability

offense. The State added that even if a culpable mental state was required, appellant had acted

in a reckless manner in drinking and driving, satisfying that element. Defense counsel replied

that, although it might have been reckless to drink and take medication, appellant could not

have acted recklessly in operating a vehicle when he had no awareness of driving.

       The trial court, with consent of both the State and the defense, delayed a ruling on this

issue for a week and permitted each side an opportunity to file a brief. After taking the

respective arguments into consideration, the trial court ruled that the State was not required

to establish a culpable mental state in this case and found that appellant was guilty of DWI.

       At sentencing, the trial judge began by stating that he wanted “to make sure my record

is clear” and to explain the basis for finding appellant guilty of DWI. The trial court stated

that proof of a culpable mental state was not required in this DWI case, that appellant’s case

was distinguishable from the facts in Leeka, but even so, appellant’s actions “by themselves

were reckless.” Defense counsel replied, “I completely understand, Your Honor.” The

sentencing order was filed of record, and this timely appeal followed.

       Appellant argues on appeal that the trial court erred in rejecting his contention that a

culpable mental state was required to be proved to establish that appellant committed DWI

in May 2013. Appellant has failed to demonstrate reversible error in the trial court’s denial


is nonetheless required and is established only if a person acts purposely, knowingly, or
recklessly.”

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of his motion to dismiss the DWI charge.

       The Omnibus DWI Act was enacted in 1983, and this Act proclaimed it unlawful in

this state for a person who is intoxicated to operate or be in actual physical control of a motor

vehicle. See Ark. Code Ann. § 5-65-103(a)(1). In 2015, our legislature saw fit to explicitly

state its intention to make DWI a strict-liability offense, not requiring proof of a culpable

mental state, in response to the April 2015 Leeka opinion. The legislature stated in Act 6 that

it “intended and still intends to keep driving while intoxicated a strict liability offense.” Act

299 accomplished the legislature’s intent by adding a new subsection (c) to Ark. Code Ann.

§ 5-65-103, which states that “[a]n alcohol-related offense under this section is a strict liability

offense.” The effective date of this legislative amendment was July 22, 2015. Appellant’s

charges of DWI arose from alleged criminal behavior in 2013.

       Appellant questions whether the trial court erred in deciding that, in May 2013, DWI

was a strict-liability offense and in failing to apply the Leeka holding to his case. We need not

answer that question, although we can readily distinguish the facts in this case from those in

Leeka.3 The trial court here found in the alternative that appellant did have a culpable mental



       3
        In Leeka, the defendant’s toxicology report indicated the presence of the drug
zolpidem, a sleep medication more commonly known by its brand name, Ambien. No other
intoxicants were found in the toxicology report, and Leeka’s breathalyzer test showed a 0.00
alcohol level. The State and defense in Leeka stipulated to a medical-opinion letter in which
a doctor opined that Leeka “experienced a complex sleep behavior . . . namely sleep-driving,
which is a known adverse reaction to Ambien.” In contrast, in the present appeal, Tackett
admitted to the consumption of alcohol and prescription pain medication, and there was no
medical evidence to suggest that Tackett’s pain medication caused the same complex sleep
behavior that Ambien is believed to cause.

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state in this case, namely that he acted recklessly. Given this finding, we need not discuss

whether there was error in the trial court’s denial of his motion to dismiss.4 When a party

appealing from a ruling leaves an alternate, independent ground unchallenged, the circuit

court’s ruling must be affirmed. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow

v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); May v. State, 2016 Ark. App. 605, at 5, 509

S.W.3d 14, 17; Bovee v. State, 2011 Ark. App. 158. Nonetheless, we hasten to add that

appellant’s admitted consumption of alcohol and prescription pain medication that led to his

driving his vehicle supported a finding that this constituted reckless behavior.

       Affirmed.

       WHITEAKER and BROWN , JJ., agree.

      Llewellyn J. Marczuk, Deputy Public Defender, by: Clint Miller, Deputy Public
Defender, for appellant.


       Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.




       4
         Appellant argues in his reply brief that our court should reject the alternative basis to
affirm because he properly preserved his argument for appellate review. We agree that his
appellate argument is preserved for review, but this does not negate the existence of an
alternative basis on which to deny dismissal of the DWI charge.

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