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Porter v. State6/25/2003
REVERSED AND DISMISSED
This appeal arises from a conviction of driving while intoxicated, third offense, of appellant, Justin Porter, in Baxter County. Appellant argues (1) that the trial court erred in finding him guilty of driving while intoxicated because the blood test taken in accordance with Ark. Code Ann. § 5-65-201 (Repl. 1997) showed a chemical analysis of .05% by weight of his blood; and (2) that the trial court erred in admitting and considering a hospital blood test as definitive proof of his intoxication when the test was not taken in accordance with the Arkansas Omnibus DWI Act. We reverse and dismiss.
On the morning of May 20, 2001, appellant crashed his car at roughly 6:30 a.m. while on his way to work, in a one-vehicle accident. Appellant was alone in the vehicle. At appellant's subsequent bench trial, Arkansas State Trooper Jim Brown testified that he arrived on the scene shortly after the accident. Brown smelled the strong odor of alcohol on appellant's person. He questioned appellant at the site of the accident about his operation of the vehicle. Appellant told Brown that he was on his way to work. Brown accompanied appellant to the Baxter County Hospital, where appellant received treatment for his injuries and where two blood-alcohol tests were performed on him.
The hospital's patient summary report indicated that the first blood-alcohol test occurred at or around 7 a.m. The test showed a blood-alcohol content of .0904%. At trial, Deborah K. Williams testified that she was the Director of Laboratory Services at Baxter Regional Hospital and that she was responsible for the supervision of blood samples and processing those samples. She did not supervise the drawing of blood from appellant because she was not then employed at the hospital. However, she testified that the hospital followed a certain protocol for drug blood tests involving cleansing the test site with a non-alcohol preparation substance and drawing the blood only after the site was cleaned. The blood thus drawn was processed in the chemistry department of the hospital's laboratory, followed by a report of the results. Williams testified that she saw no reason to believe that this procedure was not followed in the case of appellant's first blood test. At the end of Williams's testimony, the State moved to admit the hospital patient summary report into evidence. Counsel for appellant did not object.
Counsel for appellant subsequently cross-examined Williams, thus establishing that Williams could not tell whether a nurse, a technician, or a doctor drew the first blood test. Cross-examination also elicited Williams's testimony stating that because the first blood test was drawn for a physician on a physician's order, the hospital personnel, regardless of who actually drew the blood, would have followed the above procedure.
Concerning the second blood test, Officer Brown testified that he observed the second blood test being conducted at around 9 a.m. Brown stated that Julie McCoy, a lab technician, drew the blood. Brown asked her specifically to use a "red solution" rather than alcohol in preparation for needle insertion. According to the officer, the red substance looked and smelled like Betadine, a substance he had seen being used in preparation of blood alcohol tests several times before. Brown sent the sample to the Arkansas State Crime Laboratory and eventually received a result of .05%.
At the end of the State's case, counsel for appellant moved to dismiss. He stated specifically:
The State has not proved that my client was intoxicated at the time the accident occurred. By the admission of the Trooper, at six-thirty the time of the collisi
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