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Etheredge v. State2/9/2005
AFFIRMED
This is a DWI case in which there is no dispute about the relevant facts. Appellant Clark Etheredge was arrested on October 20, 2002, and was charged with driving while intoxicated and refusal to consent to a breath test. At a trial in Cabot District Court, he was found guilty of DWI but was acquitted on the refusal-to-consent charge. He appealed his DWI conviction to the Circuit Court of Lonoke County, where he filed a motion in limine to exclude evidence of his refusal to consent. Appellant also moved for and renewed a directed-verdict motion, which the trial court denied. Appellant raises two points on appeal: (1) that the trial court erred in denying his motion in limine, and (2) that the trial court erred in refusing to grant his motion for directed verdict. We affirm on both points.
Etheredge asserted in his motion in limine that evidence of his refusal to consent was inadmissible on two grounds: it was not probative of his truthfulness and thus was not admissible under Ark. R. Evid. 608; and the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, thus rendering it inadmissible under Rule 402. Etheredge argued at the motion hearing that he should not be forced to relitigate the issue of refusal and that his case was distinguishable from Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998). The State asserted that it was not trying to relitigate the issue of refusal and that the evidence was admissible under Medlock. The State argued that any prejudice did not outweigh the probative value of the evidence of refusal because, even though the district court had found Etheredge not guilty of the charge, the refusal to consent had independent relevance showing appellant's consciousness that he was guilty of DWI. The trial court denied appellant's motion and permitted evidence of his refusal to consent to be admitted. At appellant's jury trial for DWI, the arresting officer testified that appellant was found sitting in his automobile, passed out at the steering wheel of his truck at an ATM, with blood-shot and watery eyes and flushed face, and smelling of the odor of alcohol; and that he failed or was unable to complete standard field sobriety tests. The officer also testified that appellant denied having any medical conditions except arthritis and that he never told the officer he could not take a breath test. Appellant testified in his own defense that he had coronary artery disease and diminished lung capacity, that on the night he was arrested he parked at the roadside and passed out at the wheel after experiencing tightness in his chest and shortness of breath, that he did not tell the officer of his physical distress and concerns, and that he told the officer he would not take a breath test but would take a blood test. He admitted that earlier in the night he had "two drinks and a glass of wine."
Etheredge contends under his first point on appeal that evidence of the refusal to submit was not probative of truthfulness, that any probative value of such evidence was substantially outweighed by the danger of unfair prejudice, and that acquittal of the refusal charge rendered evidence of the matter inadmissible. He complains that he had a constitutional right not to testify at his trial de novo on the DWI charge, but that admission of refusal-to-submit evidence shifted to him the burden of rebutting inferences to be drawn from the circumstances surrounding the refusal and required him to testify about those circumstances and his particular medical conditions.
In Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998), the supreme court held that evidence of a defendant's refusal to submit to a breath test is properl
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