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KENYON v. STATE6/4/1997
s a contributing factor in the accident report. Both paramedics who came to the scene smelled a strong odor of intoxicants coming from appellant. Appellant's nurse at Central Arkansas Hospital testified that she smelled the distinct odor of alcohol coming from appellant.
Corporal Lindsey Williams of the Arkansas State Police testified that he is certified to reconstruct accidents. He arrived at the scene several hours after the accident. From the skid marks, measurements, and photographs, he concluded that the accident occurred on a stretch of straight, flat highway. It was Williams's definite opinion that the impact occurred in the victims' lane of traffic. Williams testified that his conclusion was that appellant crossed the center line, hit Melissa Patrick, then continued across the center line and hit the Ford Escort in which Steven Seitz and Cody Patrick were riding. He saw no sign of braking by appellant before the initial impact.
At the hospital, appellant signed a statement of rights form for administration of a blood-alcohol test. Appellant agreed to take the test. On the rights form, he indicated that he did not wish to have his own blood, urine, or breath test. Appellant put the wrong date on this form. He also wrote "I was not driving." The result of the legal blood test was that appellant had a blood-alcohol level of .10. The hospital also performed tests. The result of the medical tests performed by the hospital was that appellant's blood-alcohol level was .12. Melissa Patrick had a blood-alcohol level of .00, as did Steven Seitz.
We first address appellant's argument that the trial court should have suppressed the blood-alcohol-test result showing his blood-alcohol level to be .10 because his right to have his own test performed was destroyed when the laboratory that performed the test removed his blood sample from refrigeration. He asserts that when a defendant's right to run his own tests is violated, his
remedy is the exclusion of the State's evidence because to do otherwise deprives the defendant of due process. The trial court correctly denied appellant's motion to suppress the result of the blood-alcohol test.
The facts pertinent to this point are that following the accident, appellant signed the statement of rights form as to the blood-alcohol test. The form explained his rights with regard to the test and explained his right to have his own test performed if he agreed to take the test. He agreed to submit to the blood-alcohol test and checked the box by the "no" following the question as to whether he would like a blood, urine, or breath test. Appellant signed this form at 2:05 a.m. on July 4, 1995. Then, on November 16, 1995, appellant filed a motion requesting an order directing the laboratory that stored the blood to make a portion of the blood available for independent testing. At this time it was discovered that an employee of the laboratory, which was privately owned and operated, had removed the blood from refrigerated storage, and the blood was no longer in a suitable condition for testing for the blood-alcohol level.
Section 5-65-204 of the Arkansas Code Annotated provides in pertinent part:
(e) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude th
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