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Burr v. State

Court of Appeals of Arkansas, Division IV

March 30, 2016

MATTHEW AARON BURR, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR-2014-1499-1. HONORABLE ROBIN F. GREEN, JUDGE.

         NORMAN DOUGLAS NORWOOD.

         VADA BERGER.

         ATTORNEY GENERAL.

         RITA W. GRUBER, Judge. ABRAMSON and VAUGHT, JJ., agree.

          OPINION

         

Page 396

          RITA W. GRUBER, Judge

         Matthew Aaron Burr was charged in the Benton County Circuit Court with first offense driving while intoxicated, refusal to submit to a chemical test, and failure to use a turn signal. He waived his right to trial by a jury and filed a motion to suppress all evidence or statements he made as a result of a traffic stop that led to his arrest. At the conclusion of a combined suppression hearing and trial, he asked that Arkansas Code Annotated section 5-65-202 and subsection -205(a)(2) (Supp. 2011) be declared unconstitutional " as applied" because they are in direct conflict with the Fourth Amendment as applied in Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The circuit court denied the motion to suppress and found him guilty of all charges.

         In his sole point on appeal, Burr contends that the circuit court erred in not finding Arkansas Code Annotated section 5-65-205(a)(2), entitled " Refusal to submit to a chemical test," unconstitutional. The statute, a part of our criminal code, is codified under the chapter on driving while intoxicated and the subchapter on chemical analysis of body substances. See also Ark. Code Ann. § 5-65-202, entitled " Implied consent."

         Burr asks that his conviction for refusal to take chemical tests be reversed and dismissed on the basis of unconstitutionality and that his DWI conviction be reversed because his refusal to take a chemical test was used to show consciousness of guilt. He lists the following extraordinary issues in his brief: federal constitutional interpretation; substantial public interest; significant issue needing clarification or development of the law, or overruling of precedent; and significant issue concerning construction of statute, ordinance, rule, or regulation. He notes that three related

Page 397

drunk-driving cases involving blood or breath tests are now pending before the United States Supreme Court: Birchfield v. North Dakota, 2015 ND 6, 858 N.W.2d 302 (N.D.), cert. granted, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015); Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403 (N.D.), cert. granted, 136 S.Ct. 614, 193 L.Ed.2d 495 (2015); and Bernard v. Minnesota, 859 N.W.2d 762, cert. granted, 136 S.Ct. 615, 193 L.Ed.2d 495 (2015). The Court's docket listing for consolidation of these cases states that each case presents the same question: " Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood." Additionally, the docket shows that the cases are set for oral argument on April 20, 2016.

         The relevant statutes in this appeal are Arkansas Code Annotated sections 5-65-202 and 5-65-205 (Supp. 2011).[1] Section 5-65-202(a), Implied consent, provides in part 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, subject to the provisions of ยง 5-65-203, to one (1) or more chemical tests of his or her blood, breath, or urine for the purpose of determining the ...

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