APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR-2013-1739-2. HONORABLE BRAD KARREN, JUDGE.
Norwood & Norwood, P.A., by: Doug Norwood, Alison Lee, and Cody Dowden, for appellant.
Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice. WYNNE, J., concurs in part and dissents in part. BAKER and HART, JJ., dissent.
COURTNEY HUDSON GOODSON, Associate Justice
In a bench trial, the Circuit Court of Benton County found appellant Ernie Charles Metzner guilty of driving while intoxicated, second offense, and guilty of violating the implied-consent law. As a consequence, the circuit court sentenced him to thirty days in jail with twenty-three days suspended and fined him $750, plus court costs. In addition, the court ordered Metzner to comply with Level II Decision Point recommendations. For reversal, Metzner argues that the circuit court erred in denying his motion to suppress the results of a blood-alcohol test taken pursuant to a search warrant, contending that the implied-consent statutes prohibit the issuance of a warrant to obtain a chemical test. This court affirms Metzner's conviction and sentence.
The record reflects that on March 16, 2013, Deputy Lynn Hahn of the Benton County Sheriff's Office conducted a sobriety checkpoint at 54th Street and Stoney Brook Road in Rogers, Arkansas. During the course of his duties, Hahn arrested Metzner for driving while intoxicated and transported him to the Bentonville Police Department for a breath-alcohol test. Metzner refused to submit to the test. Hahn then applied for and obtained a search warrant for the collection of a sample of Metzner's blood for testing. Under the authority of the warrant, Hahn took Metzner to Northwest Medical Center for the extraction of Metzner's blood. The result of the test showed a blood-alcohol content of .15%.
Prior to trial, Metzner moved to suppress the result of the blood test. He argued that the implied-consent law prohibits the taking of a blood sample pursuant to a search warrant when an accused refuses to take a chemical test requested by a law enforcement officer. In response, the State asserted that the evidence obtained as a result of the search warrant was not seized in violation of the implied-consent statutes and that the seizure did not otherwise offend Metzner's rights guaranteed by the Fourth Amendment to the United States Constitution. The parties briefed the issue and argued their positions at a hearing. The circuit court subsequently entered an order denying the motion to suppress. After reviewing the relevant law, the circuit court concluded that the General Assembly did not intend to prohibit all possible chemical testing after an accused refuses a chemical test
and did not intend to afford greater rights to a drunk driver than is constitutionally required. With that ruling, the case proceeded to trial. Metzner waived his right to be tried before a jury.
At the bench trial, the State introduced into evidence the result of the blood test and presented the testimony of Deputy Hahn. Hahn testified that at 2:45 a.m., Metzner approached the checkpoint driving a Ford Mustang and that Metzner stopped the vehicle approximately 150 feet short of the roadblock. Hahn motioned the vehicle to move forward, and when Metzner rolled down the window, Hahn detected the odor of intoxicants and cologne, and he saw a bottle of cologne on the passenger seat of the car. Hahn testified that, based on his experience as an officer, cologne is typically used to mask the odor of alcohol or drugs. Hahn further testified that he advised Metzner that he could smell the odor of intoxicants but that Metzner denied that he had been drinking. Hahn then asked Metzner to drive the vehicle to the curb. He said that Metzner stopped well short of the curb, such that the vehicle was blocking the street. Hahn asked Metzner to reposition the vehicle. He said that Metzner pulled up a little farther but that the vehicle remained several feet away from the curb.
Hahn testified that he approached Metzner again and noticed that his eyes were bloodshot and watery. Metzner refused Hahn's request to take a portable breath test, and he also initially declined Hahn's command to exit the car. After Metzner agreed to step out of the vehicle, he used the door to hoist himself out of the car. Hahn stated that Metzner was hanging onto the door for balance until he had Metzner close the door. Hahn then asked Metzner to walk to the front of the vehicle. Hahn testified that Metzner displayed poor balance and that he used his right hand to steady himself while walking to the front of the vehicle. Hahn stated that, while standing at the front of the vehicle, Metzner was swaying in a circular motion. Metzner again denied that he had been drinking and refused to perform any field-sobriety tests. Hahn testified that he placed Metzner under arrest for driving while intoxicated based on Metzner's driving, his failure to properly park, the odor of intoxicants, his bloodshot and watery eyes, along with his swaying and poor balance.
Hahn further testified that he had to hold onto Metzner's arm when walking him to the patrol car out of fear that Metzner might fall. Hahn also moved Metzner's vehicle out of the lane of traffic because it was still blocking the roadway. During the inventory of Metzner's vehicle, Hahn found a cool beer bottle with liquid in it. Hahn stated that he advised Metzner of his rights under the implied-consent law and that Metzner did not respond to the question whether he would take a breath test. Hahn testified that, at the police station, Metzner stumbled over his own feet while walking on a smooth floor. He said that he had to hold onto Metzner to keep him from falling as they proceeded to the room where the intoximeter was located. Finally, Hahn stated that Metzner refused to take the breath test because he would not respond to the request to take the test.
Based on Hahn's testimony, the circuit court found Metzner guilty of driving while intoxicated, second offense, and of refusal to submit. The circuit court entered its sentencing order reflecting the court's findings and sentence on June 19, 2014. This appeal followed.
As his sole issue on appeal, Metzner contends that the circuit court erred by denying his motion to suppress the results of the blood-alcohol test. He argues that,
according to Arkansas Code Annotated section 5-65-205(a) (Repl. 2005), when a person under arrest refuses a law enforcement officer's request to submit to a chemical test, the statute provides that " no chemical test shall be given." Metzner asserts that this language prohibits the issuance of a warrant to collect a blood sample for testing. In opposition to this argument, the State asserts that the implied-consent laws authorize warrantless searches based on implied consent and that the statute proscribes only the warrantless search when an accused refuses to submit to a chemical test at the request of a law enforcement officer. Further, the State contends that, because the statute addresses only the issue of implied consent and warrantless searches, it cannot effectively be argued that the statute contains a prohibition against chemical testing pursuant to a valid search warrant.
We begin by recounting a few basic principles. The collection and testing of a person's blood, breath, or urine constitutes a search under the Fourth Amendment to the United State's Constitution, requiring a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); see also Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007). A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003). In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court applied the emergency exception based on the threatened destruction of evidence to hold that the warrantless seizure of a blood sample for blood-alcohol testing while the accused was receiving treatment for injuries sustained in a car accident was8 justified under those circumstances. However, the Court subsequently refined its holding to Schmerber by observing that, " [i]n those drunk driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Missouri v. McNeely, __ U.S. __, __, 133 S.Ct. 1552, 1561, 185 L.Ed.2d 696 (2013).
Another established exception to the warrant requirement is a search that is based on consent. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004); Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). The Arkansas implied-consent laws are based on this exception, as they are founded on the principle that " [a]ny person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent . . . to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood." Ark. Code Ann. § 5-65-202(a) (Repl. 2005). We have observed that the intent of the General Assembly in passing these laws was to mandate alcohol testing for a person stopped by a law enforcement officer when an officer has reasonable cause to believe that the driver is intoxicated. See Parsons v. State, 313 Ark. 224, 853 S.W.2d 276 (1993).
Our implied-consent law also recognizes the right of a person to withdraw this consent. " If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-202, no chemical test shall be given. ...