dissent">John I. Purtle, Justice,

dissenting. The appellant was found guilty by the use of conjecture and speculation that he had driven the vehicle while intoxicated. This court has affirmed by the use of conjecture and speculation or possibly by the use of clairvoyant powers. There is not a scintilla of evidence to support the conclusion that appellant had been drinking before the accident.

The majority opinion might have some semblance of soundness if it simply stated that appellant became intoxicated after the vehicle became stuck in the mud but he was nevertheless in control of it at the time of the arrest. The approach of the majority has placed us in the position of a super-jury and that we are not. Of course this theory could also be wrong because anyone with knowledge of the testing apparatus knows that with alcohol still in the mouth a test is unreliable. There was no second test given although appellant expressed a desire to obtáin one. In fact he was allowed to make three or four phone calls from the police station to try to locate money for another test. Apparently he was not too drunk to exercise sound judgment in the matter.

Undisputed testimony of witnesses in court reveals that appellant had been at a bowling alley for two or three hours before the incident. According to the appellant and a witness he had not had anything of an alcoholic nature to drink until after the accident. The arresting officers testified they did not know how long the car had been in the ditch, whether appellant had had anything to drink before the incident, or whether appellant had control of the vehicle after it went into the ditch. Also, the officers admitted that appellant could have drunk the alcohol after he left the scene to get help.

We went as far as possible in Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985). We went too far in Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). Wiyott was behind the steering wheel of his vehicle and the key was in the ignition. Furthermore, he attempted to start the vehicle when he became aware the officers were present. Azbill, like appellant, was standing beside his vehicle which also had gone into the ditch. The sole redeeming fact to support the conviction of Azbill was that he admitted he had driven from Jonesboro. Neither was there proof that he had become intoxicated after the mishap. We made a correct and sound determination in Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), and I think we should return to the principles established therein.

Although I may suspect that appellant ingested some intoxicants before the mishap, I have no right to rely on suspicion. I am bound by the proof and the law. This case should be reversed and dismissed.

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