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LOVELL v. STATE10/22/1984
support an even lower figure. (Hurst, Estimating the Effectiveness of Blood Alcohol Limits (1970) 1 Behav. Research Highway Safety 87; Ross, Deterring the Drinking Driver' (1982) pp. 2-3; Jones & Joscelyn, Alcohol and Highway Safety 1978, op. cit. supra, pp. 35-50; Hearings Before Subcom. on Courts, supra, pp. 99-101; Gray, Attorneys' Textbook of Medicine (3d ed. 1983) 133.52 - 133.52(3). At least two states and several foreign countries have established standards between 0.05 percent and 0.08 percent. We have no difficulty concluding that the 0.10 percent figure fixed by section 23152, subdivision (b), is rationally related to exercise of the state's legitimate police power. (Roberts v. State, supra, 329 So.2d 296, 297.)
The .10% standard is reasonable and bears a direct relationship to the state's interest in protecting its citizens.
Appellants' fourth argument is that the act unconstitutionally allows the police officer, rather than the prosecuting attorney, to file the charge. On the misdemeanor cases before us on these appeals, the argument is without merit t. However, we issue a caveat that the argument may well be meritorious in felony cases.
Article 2, Section 8 of the Constitution of Arkansas provides that no one shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury except for those cases which the General Assembly shall make cognizable by Justices of the peace, or courts of similar jurisdiction. Justice of the peace courts and similar jurisdiction courts have jurisdiction only of misdemeanors. See Ark. Stat. Ann. 22-709, 22-724 and 22-801 (Repl. 1962). Amendment 21 provides that offense which had to be filed by grand jury indictment may now be filed by an information by the prosecuting attorney.
Since all appellants are charged with misdemeanors and since only felonies are required to be brought by indictment or information, the act, as applied to these appellants, does not violate the Constitution of Arkansas.
Appellants also argue that the act constitutes an unlawful delegation of judicial power to the administrative branch. The argument is predicated upon the act giving the Arkansas Department of' Health the authority to select and approve the chemical tests for blood alcohol content.
The mere fact that the Department of Health selects the method of testing does not delegate to it the power to find one guilty. State v. Melcher, 655 P.2d 1169 (Wash. App. 1983). The sole authority to find a defendant guilty of violating this act remains with the judicial branch.
The appellants filed motions asking that their sentences be suspended. The trial court ruled that he did not have the authority to suspend their sentences since the sentencing provisions of the act are mandatory. 75-2504 and 75-2505. Appellants contend that a general statute authorizes the trial court to suspend or probate sentences. See Ark. Stat. Ann. Title 41, Chapter 12 (Repl. 1977 and Supp. 1983). The trial court was correct because where a special act applies to a particular case, it excludes the operation of a general act upon the same subject. Saline County v. Kinkead, 84 Ark. 329, 105 S.W. 581 (1907).
The appellants do not argue, and we do not consider, the constitutionality of the provision stating that judges may not suspend execution of sentences.
Affirmed in part; reversed in part.
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