APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR12-631-2. HONORABLE BRAD KARREN, JUDGE.
Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
RITA W. GRUBER, Judge. WALMSLEY and HARRISON, JJ., agree.
RITA W. GRUBER, Judge
Appellant Christopher David Ebel appeals from a conviction for driving while intoxicated, second offense. Appellant's sole point on appeal is that the trial court erred in denying his motion in limine to exclude the results of a breathalyzer test because the arresting officer did not allow appellant to have an additional, independent blood test administered. We affirm appellant's conviction.
Arkansas Code Annotated section 5-65-204(e) (Repl. 2005) provides as follows:
(e)(1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his or her own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(2) The law enforcement officer shall advise the person in writing of the right provided in subdivision (e)(1) of this section and that if the person chooses to have an additional chemical test and the person is found not guilty, the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test.
(3) The refusal or failure of a law enforcement officer to advise a person of the right provided in subdivision (e)(1) of this section and to permit and assist the person to obtain a chemical test under subdivision (e)(1) of this section precludes the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.
When a defendant moves to exclude a test pursuant to section 5-65-204(e)(2), the State bears the burden of proving by a preponderance of the evidence that the defendant was advised of his right to have an additional test performed and that he was assisted in obtaining a test. Kay v. State, 46 Ark.App. 82, 85, 877 S.W.2d 957, 959 (1994). The initial test result may be admitted into evidence if there was substantial compliance with the statute. Reynolds v. State, 96 Ark.App. 360, 361, 241 S.W.3d 765, 766 (2006). Furthermore, the officer must provide only such assistance in obtaining an additional test as is reasonable under the circumstances presented. Kay, 46 Ark.App. at 85, 877 S.W.2d at 959. Whether the assistance provided was reasonable under the circumstances is ordinarily a fact question for the trial court to decide. Id. It is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Id. We will not reverse the trial court's ruling on the admission of evidence absent an abuse of discretion and a showing of prejudice. Graham v. State, 2012 Ark.App. 90, at 7, 389 S.W.3d 33, 37; see also Mhoon v. State, 369 Ark. 134, 136, 251 S.W.3d 244, 246-47 (2007).
We turn to the facts relevant to appellant's motion in limine. Appellant was arrested at approximately 1:30 a.m. on December 2, 2011, when Officer Joe Pruitt of the Benton County Sheriff's Office saw appellant's SUV cross the center line four times and decided to pull him over. Officer Pruitt testified that appellant's eyes were bloodshot and watery, that he ...