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Daniels v. State12/17/2003
235 (2003). The supreme court construes criminal statutes strictly, resolving any doubts in favor of the defendant. Id. The provisions of Ark. Code Ann. § 5-65-204(e) (Supp. 2003) are clear, and because there was a failure of compliance, we are constrained to reverse the trial court's admission of the breathalyzer test result.
Finally, we address the State's contention that, even if admission of the portable breath test was error, such error was harmless in light of the overwhelming evidence of appellant's guilt. For this proposition, the State relies on Massengale v. State, supra. The State asserts that there were other factors indicative of appellant's guilt, including the .10 breathalyzer result.
We do not agree that admission of the portable breath test result amounted to harmless error. In Massengale v. State, supra, the supreme court held that admission of an unsatisfactory portable breathalyzer test was harmless in light of other overwhelming admissible evidence, which included Mr. Massengale's refusal to submit to a certified breathalyzer test. In the case at bar, Mr. Daniels submitted to the certified test, but we now hold that the result should not have been admitted. Arkansas Code Annotated § 5-65-103 (Supp. 2003) criminalizes driving while intoxicated, and provides:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person's breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
Pursuant to our resolution of the evidentiary issues presented in this appeal, the State failed to offer any competent evidence to prove a violation of subsection (b) of the above statute. While the State did introduce competent evidence of Mr. Daniels' intoxication, we hold that this evidence was not so overwhelming as to render the trial court's errors harmless.
Reversed and remanded.
Vaught and Crabtree, JJ., agree.
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