FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR-2014-1499-1.
HONORABLE ROBIN F. GREEN, JUDGE.
GRUBER, Judge. ABRAMSON and VAUGHT, JJ., agree.
W. GRUBER, Judge
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
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."
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
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.
relevant statutes in this appeal are Arkansas Code Annotated
sections 5-65-202 and 5-65-205 (Supp. 2011). 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 §
5-65-203, to one (1) or more chemical tests of his or her
blood, breath, or urine for the purpose of determining the