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ALMOBARAK v. STATE7/22/1987
Appellant, Omar Almobarak, was convicted of DWI, first offense, fined $450.00 plus court costs of $300.05, his driver's license was suspended for 90 days, and he was ordered to attend and complete a ten-hour alcohol safety program.
Appellant was stopped in Hot Springs at approximately 4:30 a.m. on August 29, 1984, when Officer Mike McKinney observed his vehicle weaving across the center line. Although appellant's speech was clear, McKinney detected an odor of alcohol about appellant and arrested him for driving while intoxicated. Appellant was taken to the police station where a breathalyzer test was performed after he was given his Miranda rights. The breathalyzer test showed appellant had 0.17% alcohol in his blood.
The machine used to perform the breath test had been certified by the Arkansas Department of Health on July 17, 1984. On October 15, 1984, when the health department next checked the machine for certification, it was discovered that the machine was not properly responding to acetone and use of the machine was suspended until it was readjusted.
Appellant made a motion to suppress the result of the breath test on the basis that the machine was not in proper working order at the time his test was administered and that law enforcement personnel who administered the test had not complied with the procedures promulgated by the Arkansas Department of Health for assuring the quality and accuracy of the test. Both motions were denied by the trial court and the test result was admitted into evidence.
The portion of the motion pertaining to the failure of law enforcement personnel to comply with health department procedures
was based on the contention that the Hot Springs officers failed to observe appellant for a twenty-minute period preceding the administration of the test as required by health department regulations. Appellant points out that he was arrested at 4:38 a.m. and the test was performed at 5:01 or 5:02 a.m., an elapsed time of only 23 or 24 minutes. He then argues that, since Officer McKinney testified that he did not keep his eye on him the entire time appellant was in the back seat of the police car in transport to the station, McKinney did not observe him for the full, uninterrupted period of time required. Also, because the officer testified he could not recall whether appellant belched or ingested any fluid or food during that time, appellant contends that the test result should not have been admitted into evidence.
The law in this regard was recently discussed in Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985), where the court said the health department regulations did not require that the police officer stare fixedly at the arrested person for 20 minutes. The court also said the arresting officer's testimony that he had observed Williford for a period of 26 minutes beginning at the scene of the arrest, continuing in the patrol car's rear view mirror, and concluding at the police station and he would have been aware if Williford put anything in his mouth, presented a prima facie showing of compliance with the regulation. See also, Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985).
[1, 2] In the instant case, Officer McKinney testified that he had stopped appellant prior to the 4:38 a.m. time period listed on the arrest report; he said that was the time he placed appellant in the patrol car for the trip to the police station. McKinney also testified that he had appellant in his custody from then until the breath test was administered and observed him for at least 20 minutes prior to the giving of the test. Furthermore, Officer Gary Miller, who administered the breath test to appellant, testified
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