This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION. NO. 60CR-13-1580. HONORABLE LEON JOHNSON, JUDGE.
Llewellyn J. Marczuk, Deputy Public Defender, by: Mary Kathryn Williams, Deputy Public Defender, for appellant.
Leslie Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't Att'y Gen., for appellee.
DAVID M. GLOVER, Judge. ABRAMSON and BROWN, JJ., agree.
DAVID M. GLOVER, Judge
William Briggs was tried by the court and found guilty of the offense of DWI-first offense. He appeals, contending the trial court erred 1) in admitting the Intoximeter results because he did not receive his requested second test and 2) in finding sufficient evidence to support the conviction. We affirm.
At 1:55 a.m. on August 16, 2012, Trooper Alan Johnson of the Arkansas State Police was sent to investigate a single-vehicle incident involving a car reportedly on fire off I-530. Upon arriving at the scene, Trooper Johnson found Briggs, who told him the vehicle was his and that he had been driving it. Trooper Johnson testified the vehicle was engulfed in flames; Briggs was " a little unsteady" and had the odor of intoxicants; and Briggs reported the accident occurred because he swerved to miss an animal on the road. Trooper Johnson explained his investigation of the scene did not support Briggs's explanation; it was more supportive of the car missing the exit and Briggs losing control in trying to correct; and there was no evidence of braking or other indications of avoidance maneuvers to miss an animal. He stated he did not conduct an investigation to determine the cause of the fire, but it was very dry in the area. According to Trooper Johnson, the circumstances of the vehicle collision, his observations of Briggs's unsteadiness, and the odor of intoxicants caused him to believe further DWI tests were indicated. Briggs was very cooperative, and Trooper Johnson took Briggs to the Sherwood Police Department to conduct a DWI investigation involving an Intoximeter instrument, which Trooper Johnson was certified to perform.
He stated it did not take him long to get to the scene of the accident because he was in the area looking for a subject about whom they had received a report of intoxication from a taxi-cab driver; the driver had reported he had dropped a passenger off and felt the subject was too intoxicated to drive; and when he received the report on the vehicle incident, he considered Briggs might be the person reported by the taxi driver. Trooper Johnson stated that because of Briggs's age (77), " some particular ailments which prevent[ed] a full battery of [field sobriety tests]," and the fact that Briggs had been involved in the vehicle accident, he did not think the field-sobriety types of tests would be effective, and the tests could not be conducted safely at that location.
He further explained how he informs subjects of the rules and their rights before administering a breathalyzer test, i.e., reading the form, getting verbal responses, and having the subject initial paragraphs indicating his or her understanding and consent to the test. He testified that Briggs seemed to understand everything being explained to him and agreed to take the test. He identified State's Exhibit 1, which was a copy of the rights form Briggs signed.
He testified the form showed Briggs was informed of his right to a second test, and Briggs indicated the desire for one. Trooper Johnson also acknowledged that he knew he was obligated to provide Briggs with reasonable assistance in getting the second test. He candidly admitted he did not specifically recall his conversation with Briggs but explained he has conducted over 800 breathalyzer tests. He testified it is his practice always to tell subjects who are being released from the facility late at night, which was true of Briggs, that such tests will have to be conducted at a hospital emergency room, and the additional testing will be at the subject's expense. He stated that he did not take Briggs to get another test when Briggs was released; he took Briggs to his house located " somewhere off Roosevelt."
Defense counsel objected to the introduction of the breathalyzer-test results, arguing that Arkansas Code Annotated section 5-65-204(e) " precludes admittance of the BAC if--if the Defendant requests a second test. He did request a second test. The second test wasn't given to him; therefore, we ask that we--we ask that the BAC results not be admitted in this case." The State responded that Trooper Johnson had explained if a subject wants a second test, and they have the funds to take the second test, they get the second test; the fact that Trooper Johnson took Briggs home indicated Briggs did not have the funds; and there is no requirement that the officer provide anything more than reasonable assistance in taking the second test. The State emphasized that reasonable assistance does not require an officer to pay for the subject's additional tests--that a second test would have been at Briggs's own expense. Defense counsel countered by arguing that Trooper Johnson could have assisted Briggs by taking him to an ATM or to his family and helped him get the money. The trial court explained substantial compliance is what is required under the statute and overruled the objection.
The results of the breathalyzer test showed a final result of .09. Trooper Johnson explained he arrived on the scene at 1:55 a.m.; arrived at the Sherwood station at approximately 2:50 a.m.; the first test was administered at 2:53 a.m.; the original sample was .099; and the second one, taken two minutes later, was .102. He stated a rise of that nature would be impossible; Briggs would have had to drink in the back of the police car or at the police station within that hour; the first time he ever heard of Briggs taking a bottle out of his vehicle to drink while his car was burning was at the district-court level; and Briggs never told him that on the night in question. Trooper Johnson also explained further that typical reactions in trying to avoid something on the road are to brake, leaving skid marks, or to swerve, causing a " yawl," which happens when ...