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Jordan v. State9/15/2004
NOT DESIGNATED FOR PUBLICATION
Appellant Brent Jordan was convicted by a jury of driving while intoxicated. He was sentenced to forty-eight hours in jail and fined $250. Mr. Jordan appeals from his DWI conviction, arguing that the trial court erred in admitting as evidence the results of the breathalyzer test. We agree and therefore reverse appellant's DWI conviction.
At a pre-trial hearing on July 15, 2002, the State informed the court that if there was a jury trial on that date, it could not introduce the rights form, as the law now required that a defendant be advised in writing that, if he/she took a second breath test and were found not guilty, the arresting agency would pay for the cost of the additional test. The State conceded that it had used the wrong form for the appellant. Counsel for the State stated, "If he were to do a motion to suppress right now in a bench trial, I would lose that motion because the motion's going to say that the State has a rights form that does not comply with the statute. And that would be true." Naturally, appellant requested a motion to suppress, which the court denied at that time pending further inquiry.
Prior to trial, Mr. Jordan filed a motion to suppress, requesting that the trial court deny admission of the breathalyzer test result, which was .145. In his motion, appellant asserted that the arresting officer failed to advise appellant of his rights pursuant to Ark. Code Ann. § 5-65-204(e) (Supp. 2003), which the legislature amended in 2001. The statute explicitly provides that the officer shall advise "that if the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test," and that the refusal or failure 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." Ark. Code Ann. § 5-65-204(d)(2) & (3) (Supp. 2003); see also Daniels v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 17, 2003).
The trial court subsequently denied appellant's motion to suppress the results of the breathalyzer test.
At trial, Officer Tony Booker testified for the State. He stated that on November 17, 2003, he stopped appellant for speeding. Officer Booker stated that, after stopping the car, he requested that appellant exit the vehicle. When Officer Booker made contact, he smelled an odor of intoxicants on Mr. Jordan, and noticed that appellant's eyes were red and glassy. Appellant admitted to Officer Booker that he had been drinking. After appellant failed the one-leg stand field sobriety test, Officer Booker later advised appellant that he was taking him to the McGehee police department where a breathalyzer test would be administered. Once at the station, Officer Booker learned that their breathalyzer was inoperable. He therefore took appellant to the Dermott station.
Damon McGilton, an employee of the Dermott police department, testified next. McGilton stated that he is certified to run the BAC DataMaster machine. McGilton testified that Officer Booker, as the arresting officer, read and explained the statement of rights to appellant. Appellant initialed that he understood the statement, agreed to take the test, and signed the rights form. Officer Booker signed the form; thereafter, McGilton signed the form as the witness. Subsequently, McGilton administered the test, during which appellant blew into the machine. McGilton revealed the test result as "point one four five [.145]."
For reversal, appellant argues that the trial court erred in admitting as evidence the results of the breathal
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