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Daniels v. State12/17/2003
Appellant Frederick Daniels was convicted by a jury of second-offense driving while intoxicated. He was sentenced to 104 days in jail and fined $400.00. Mr. Daniels appeals from his DWI conviction, arguing that the trial court erred in admitting evidence that he failed a portable breath test. Mr. Daniels further argues that the trial court erred in admitting the result of the breathalyzer test taken at the police station. We agree with both of appellant's arguments, and we reverse his DWI conviction.
Prior to trial, Mr. Daniels filed a motion in limine asking the trial court to suppress evidence of the breathalyzer test result, which was .10. A pre-trial hearing was held on appellant's motion, and at the hearing Mr. Daniels argued that the test result was inadmissible because there was not full compliance with Ark. Code Ann. § 5-65-204(e) (Supp. 2003), which provides:
(e)(1) 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.
(2) The law enforcement officer shall advise the person in writing of this right and that if the person chooses to have an additional test and the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test.
(3) The refusal or failure of a law enforcement officer to advise a person of this right and to permit and assist the person to obtain a test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
At the hearing, Mr. Daniels acknowledged that he was advised in writing that he could have another test at his own expense, and that he declined any additional test. However, he testified that he was not advised that he would be reimbursed for the additional test if found not guilty, and that had he been given this advice he would have taken an additional test. At the conclusion of the hearing the trial court denied appellant's motion to suppress the evidence, stating, "There may have been a technical failure here, but I don't consider it to be a substantial failure to comply with the statute, such that would in all cases require the court to refuse to let the test results in."
At the trial, Officer Matthew Williams testified for the State. He stated that on October 14, 2001, he stopped Mr. Daniels for speeding. Officer Williams stated that, after he stopped the car, Mr. Daniels crawled over his wife in the passenger's seat and exited from the passenger's side of the vehicle. When Officer Williams made contact, he smelled an odor of intoxicants on Mr. Daniels, and noticed that Mr. Daniels was swaying, had bloodshot eyes, and his speech was slurred. Mr. Daniels admitted to Officer Williams that he had drunk several beers. According to Officer Williams, Mr. Daniels "had all six clues on the HGN test." Officer Williams attempted to perform other field sobriety tests, but did not do so because Mr. Daniels told him he had a leg injury.
Over appellant's objection, Officer Williams was permitted to testify that Mr. Daniels failed a portable breath test. Officer Williams further testified that the result of the breathalyzer taken at the station was .10.
Mr. Daniels and his wife testified on his behalf. Both of them testified that he had been drinking beer, but was not drunk, on the night of his arrest.
Mr. Daniels' first argument for reversal is that the trial court erred in admitting evidence that he failed a portable breath test. He acknowledges that it may not be
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