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RASMUSSEN v. STATE10/25/1982
n beers, the State asked Rasmussen whether she would ". . . be surprised to know that the autopsy report showed that he [Corley] had a blood alcohol level of only .07 and the legal limit for intoxication - the lowest level is .10? Would that kind of surprise you?" The defense objected, stating that that was an incorrect statement of the law. The following exchange took place:
DEFENSE COUNSEL:
Your Honor, I'm going to object to that. That's not a proper statement of the law. The lowest intoxication level is .05.
THE STATE:
I think the Arkansas law is .10.
THE COURT:
I believe that's correct.
DEFENSE COUNSEL:
.10 raises a presumption that this man had been drinking.
THE COURT:
It raises a presumption that he was under the influence, I believe is a proper statement of the law. Proceed.
The attorneys and the court were no doubt referring to Ark. Stat. Ann. 75-1031.1 (Repl. 1979). On appeal, the appellant argues that the objection should have been sustained for four reasons: (1) Because Corley's autopsy report had not been introduced; (2) because blood-alcohol content cannot be admitted into evidence until several statutory requirements have been met; (3) because the trial judge's comments supported the prosecutor's declaration; and, (4) the trial judge's comments were misleading. The defense attorney did not try to prevent the discussion of the law; rather, he joined in and argued his interpretation of the statute. Furthermore, the only objection made by the defense at the trial was that the prosecutor's question to Rasmussen was an incorrect statement of the law. Under those circumstances, we find that he did not properly preserve his right to raise these arguments on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
We have reviewed the record for other errors, and found none.
Affirmed.
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