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FIEGEL v. CITY OF CABOT4/12/1989
dant's interests against those of the State in deciding that the assistance offered was reasonable. Focusing on the unique situation presented the trial court held that Officer Higgs' actions were reasonable because compliance with the appellant's request would have left the City of Cabot without any police protection for the period of time necessary to transport the appellant to Jacksonville for testing, to accomplish the testing, and then to transport him back to Cabot. The trial court's finding that the level of assistance offered to the appellant was reasonable under the circumstances was amply supported by the evidence, and we hold that the officer's actions constituted substantial compliance with Ark. Code Ann. 5-65-204(e)(2) (1987).
Affirmed.
CORBIN, C.J., dissents.
DONALD L. CORBIN, Chief Judge, dissenting. I dissent. Arkansas Code Annotated Section 5-65-204(e)(2) (1987) of our Omnibus DWI Act provides in part:
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 the admission of evidence relating to the test taken at the direction of a law enforcement officer.
I fail to see any degree of "reasonable assistance" on the part of the law enforcement officer in the instant case. Although the officer advised appellant of his right to an additional test, the officer's testimony reveals that he did not follow through in assisting appellant to obtain the additional test as required by the above code section. The police officer testified that since he was the only officer on duty he told appellant, "here's the telephone, you call whoever you want to, to be able to come to the Cabot Police Department and take your blood or to take you to get blood drawn." The officer also testified that he offered to allow appellant to call a "medical technician or doctor or somebody to come and draw blood" at approximately 3:30 a.m.
One does not have to engage in speculation to realize that a substantial period of time would pass before the test could have been administered. This could gave caused problems with the results being admissible because of the lack of timeliness. It is my opinion that the officer's refusal to transport appellant only eight miles to a facility to conduct the additional test because it would leave the city without police protection does not comply with his duty "to assist" appellant in obtaining the test. Eight miles is not on the other side of the world. A discussion of this issue in Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (198 leaves me with the inescapable conclusion that there was no reasonable assistance provided by the officer in the present case considering the time, place and circumstances. Thus the test by the officer should have been excluded. Furthermore, proof of blood alcohol content is not necessary for a conviction of driving while intoxicated, Wilson v. State, 284 Ark. 413, 682 S.W.2d 745 (1985). I respectfully dissent.
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