 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Elser v. State5/8/2003
court noted that Dr. Hawk "testified that the instrument is generally accepted as reliable in detecting the presence or absence of alcohol, although not the exact quantity." Id. In addition, Dr. Hawk stated that an independent study had been performed regarding the reliability of the Alco-Analizer II, the model of the PBT that was administered to Patrick, and that the study "showed that the chances of a negative reading being wrong were 1 in 10,000." Id. This court stated:
We are convinced that the evidence is not so inherently unreliable that a jury cannot rationally evaluate it. This, together with the fact that the test results were necessary for Patrick to receive a fair trial, leads us to conclude that the trial court should have admitted the test results into evidence; it should have allowed the officers to be cross- examined about the test results; and the relevant admissible testimony of Dr. Hawk should have been admitted. Id. (Citations omitted.)
In Patrick, the court did not hold that the PBT was reliable to test a person's blood-alcohol content. Rather, the Patrick court held that Patrick's defense was that he had not drunk any alcohol, and the PBT was reliable, based on the proffer before the trial court from the expert witness, to prove whether Patrick had drunk any alcohol. In Patrick, the PBT result was exculpatory for the purpose of proving that Patrick had not drunk any alcohol.
In the present case, Elser maintains that the results of a PBT are admissible if they are consistent with the BAC Datamaster results. Elser states:
In the present case, Officer Hudson testified that the BAC Datamaster Machine was accurate plus or minus .01%. According to Officer Hudson's testimony, the results of the BAC Datamaster test taken by Mark Elser could have been .11%, .10%, or .09%. Therefore, the results of the PBT test were admissible if they were consistent with the findings of the BAC Datamaster Machine. Furthermore, if the PBT test results were consistent with the BAC Datamaster Machine test results, then the results must be as reliable as the results of the BAC Datamaster Machine. If the PBT registered .09%, then the BAC Datamaster Machine would have been inaccurate as Officer Hudson testified to the jury it could be, and Mark Elser would not intoxicated within the meaning of the law. The defense attempted to introduce this evidence that would have shown that Mark Elser was not intoxicated within the meaning of the law, but that his actual results were below the legal limit. The PBT, if consistent with the BAC Datamaster Machine, must be held to be admissible and reliable because the PBT reliability is proven by virtue of the BAC Datamaster Machine.
In effect, Elser is attempting to "bootstrap" the reliability and admissibility of the PBT upon the reliability and admissibility of the BAC Datamaster Machine. Elser offers no authority to support his argument. This court will not entertain an argument where there is no citation to authority or convincing legal argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
We hold that PBT results are not admissible as substantive proof absent proof PBT results are reliable. This holding is not inconsistent with Patrick, supra.
We affirm the circuit court and reverse the court of appeals.
Affirmed.
Page 1 2 3 4 5 Arkansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|