                                    Cite as 2015 Ark. App. 42

                    ARKANSAS COURT OF APPEALS
                                           DIVISION II
                                          No.CR-14-596

                                                     Opinion Delivered   January 28, 2015

TRAVIS KLINT PERRIGEN                                APPEAL FROM THE GARLAND
                     APPELLANT                       COUNTY CIRCUIT COURT
                                                     [No. CR-13-143]

V.                                                   HONORABLE JOHN HOMER
                                                     WRIGHT, JUDGE
STATE OF ARKANSAS
                                    APPELLEE         AFFIRMED



                                LARRY D. VAUGHT, Judge

          Travis Klint Perrigen appeals his conviction of operating a motor vehicle with a breath-

alcohol concentration of .08 or more in violation of Arkansas Code Annotated section 5-65-

103(b) (Repl. 2005). The only issue presented on appeal is a challenge to the sufficiency of the

evidence supporting the conviction. Perrigen argues that the results of two alcohol-concentration

breath tests utilizing an Intoximeter ECIR machine, commonly referred to as breathalyzer tests,

were insufficient to support his conviction in light of the alleged unreliability of the results of

such tests. We hold that there was substantial evidence supporting Perrigen’s conviction and

affirm.

          On September 8, 2012, Hot Springs Police Department Officers Shawn Lowery and John

Tinney observed Perrigen and a companion riding motorcycles at a high rate of speed

approaching the intersection of Broadway Street and Grand Avenue in Hot Springs. The light

was red, but Perrigen was unable to stop before entering the intersection. He came to a stop in
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the intersection, while his companion slid into the median. The officers approached Perrigen and

his companion. Officer Lowery testified that Perrigen smelled of alcohol, was very red-faced,

had slurred speech, and had bloodshot, watery eyes. When questioned, Perrigen admitted that

he had been drinking but did not indicate the amount. Lowery initiated field-sobriety tests,

which consisted of (1) a horizontal-gaze-nystagmus test, (2) a walk-and-turn test, and (3) a one-

leg-stand test. The results of the tests indicated that Perrigen was intoxicated. Lowery testified

that Perrigen then said, “I threw my life away because of a beer.” Lowery then placed Perrigen

under arrest and transported him to the Garland County Sheriff’s Department.

        At the Sheriff’s Department, Lowery advised Perrigen of his rights. Perrigen waived his

Miranda rights and consented to take a breath test to determine his blood-alcohol content. At

trial, it was undisputed the Intoximeter ECIR used to conduct the tests was properly functioning

and correctly calibrated at the time. Officer Lowery is certified to conduct blood-alcohol tests

using the Intoximeter ECIR. It was also undisputed that Officer Lowery followed all required

protocol in administering the test. Two tests were performed, which is standard procedure in

order to control for biological variables and variations due to differences in breath pressure and

volume. In order to be valid, the two test results must be within .02 of each other. The lower test

result is reported as the final result. Perrigen’s first test result was .092, and his second result was

.084. Officer Lowery recorded Perrigen’s blood-alcohol content as .084 and charged him with




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violating Arkansas Code Annotated section 5-65-103 (a) and (b) (Repl. 2005)1 and with careless

and prohibited driving.

       At trial, Perrigen’s attorney elicited testimony from Laura Bailey, Director of the

Arkansas Department of Health’s Office of Alcohol Testing, regarding factors that can influence

breathalyzer-test results, including the subject’s weight, body temperature, medical history,

breath pressure and volume, and whether he held his breath before the test. She testified that

air temperature, dew point, breath/blood partition ratio, and machine calibration can also affect

the result. Bailey testified as to the margin of error of the breathalyzer machines. She stated that

before the State approved this particular model for use, it conducted rigorous tests involving

seventy-five samples at each of six concentration levels between 0 and .20. In order to approve

the machines, the State required the average results for each sample to be within .003 of the

target. The results fell within the allowable margin, and the State approved the machines for use

in blood-alcohol testing.

       Next, Bailey testified that every subject must provide two tests, and in order to be valid,

both results must be within .020 of each other. This is to control for biological variables that

may affect the test results. If the two tests are within .020 of each other, the lower test result is

used. If they are not, a valid test result has not been obtained, and the State may not use either


   1
    Arkansas Code Annotated section 5-63-103 provides:
      (a) It is unlawful and punishable as provided in this chapter for any person who
      is intoxicated to operate or be in actual physical control of a motor vehicle. (b) It
      is unlawful and punishable as provided in this chapter for any person to operate
      or be in actual physical control of a motor vehicle if at the time the alcohol
      concentration in the person’s breath or blood was eight-hundredths (0.08) or
      more based upon the definition of alcohol concentration in § 5-65-204.

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result as the basis for charging the subject with violation of Arkansas Code Annotated section

5-65-103 (Repl. 2005).

       Finally, Bailey testified that every machine is tested on a monthly basis through the use

of proficiency samples mailed to each location. While Bailey did not state the allowable margin

of error for these tests, she did provide the specific results for the machine used to test Perrigen.

On August 4, 2012, the machine tested a .08 control sample and provided results of .077 and

.077. On September 6, 2012, the machine tested a .04 control sample and provided results of

.038 and .038. On October 7, 2012, the machine tested a .18 control sample and returned results

of .173 and .173.

       At the close of the State’s case, Perrigen’s attorney moved for a directed verdict, arguing

that the State could not rely upon the breathalyzer results to support a conviction based upon

the alleged unreliability of the results and that there was insufficient evidence to support

conviction under either prong of the statute. The court denied the motion on both counts.

Perrigen’s attorney also moved for directed verdict on the charge of careless and prohibited

driving, which was granted.

       The case went to the jury on a general-verdict form accompanied by written

interrogatories regarding the jury’s findings under each subsection of the statute. The jury

convicted Perrigen and indicated in the interrogatories that they did so pursuant to subsection

(b) of section 5-65-103. The jury did not find Perrigen guilty under subsection (a), operating a

motor vehicle while influenced or affected by the ingestion of alcohol to such a degree that his

reactions, motor skills, and judgment were substantially altered and therefore he constituted a



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clear and substantial danger of physical injury or death to himself and other motorists or

pedestrians. They only found him guilty under subsection (b), operating a motor vehicle while

the alcohol concentration in his breath was eight hundredths (.08%) or more by a chemical test

of his breath. Perrigen filed a timely notice of appeal.

       The only issue Perrigen raises on appeal is whether there was sufficient evidence to

sustain his conviction for violation of subsection (b) of Arkansas Code Annotated § 5-65-103.

Appellant argues that the State failed to carry its burden of proof because he claims that his

breathalyzer test results were within the margin of error for the machine and were an unreliable

indicator of his actual blood-alcohol content because the test did not account for numerous

variables that may affect the result.

       An appeal from the denial of a motion for directed verdict is treated as a challenge to the

sufficiency of the evidence.2 Bangs v. State, 338 Ark. 515, 518, 998 S.W.2d 738, 741 (1999). We

will affirm the denial of a motion for directed verdict if substantial evidence, either direct or

circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474

(2000). Substantial evidence is evidence that would compel a conclusion one way or the other

with reasonable certainty, without relying upon mere speculation or conjecture. Id.; Andrews v.

State, 2012 Ark. App. 597, 424 S.W.3d 349. In determining the sufficiency of the evidence on

appeal, we not only consider the testimony that tends to support the verdict, but also view the

       2
         Although Perrigen’s attorney failed to renew his motion for directed verdict at the close
of all evidence, the Arkansas Supreme Court has previously held that “when a defendant
presents no evidence after a directed verdict motion is made, further reliance on that motion is
not waived.” Robinson v. State, 317 Ark. 17, 23, 875 S.W.2d 837, 841 (1994). Therefore, because
Perrigen put on no additional evidence after the motion was made, his failure to renew it is not
fatal to his appeal.

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testimony in the light most favorable to the appellee. Wells v. State, 303 Ark. 471, 473–74, 798

S.W.2d 61, 63 (1990) (citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Pope v. State,

262 Ark. 476, 557 S.W.2d 887 (1977)). The standard of review in a criminal case is not whether

the evidence eliminates a reasonable doubt, but simply whether the finding of fact is supported

by substantial evidence. Id., 798 S.W.2d at 63 (citing Broyles v. State, 285 Ark. 457, 688 S.W.2d 290

(1985)).

       In this case, the trial court correctly ruled that Perrigen’s directed-verdict arguments as

to the reliability of the breathalyzer machine went to the weight and credibility of the evidence,

which is within the purview of the jury. Williams v. State, 351 Ark. 215, 222–23, 91 S.W.3d 54,

58–59 (2002). The jury heard the evidence concerning the reliability of the breathalyzer

machines, in general, and of the reliability of the machine used to test Perrigen, in particular, and

chose to believe that the machine in this case was reliable. Perrigen’s breathalyzer-test results

were above the legal limit. Viewing the evidence in the light most favorable to the State, we hold

that there was substantial evidence to support Perrigen’s conviction.

       Affirmed.

       WHITEAKER and HOOFMAN, JJ., agree.

       The Cannon Law Firm, P.L.C., by: David R. Cannon, for appellant.
       Dustin McDaniel, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.




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