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Etheredge v. State2/9/2005
nying appellant's motion in limine and in admitting evidence that appellant refused to take the breathalyzer test in the DWI trial at the circuit court level. First, I do not agree that Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998) and Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990), warrant affirmance on the facts in this case. The glaring difference between the instant case and Medlock is that the Medlock defendant was found guilty of refusal to take a breathalyzer exam, whereas appellant was acquitted of that charge. Further, in Spicer, the disposition of the failure to submit charge was not apparent from the record, and we merely noted in dicta, in a footnote, that it was not necessary for the court to know the disposition of the failure to submit charge to resolve the issue in that case. Thus, neither the Arkansas Supreme Court nor this court has squarely sanctioned the admission of evidence of refusal to submit to a breathalyzer exam as independently relevant evidence of intoxication, where a defendant has been acquitted of the charge at the district court level.
Second, I disagree that any error is harmless. I believe the prejudicial effect of introducing the evidence of appellant's refusal to submit far outweighed any probative value that the evidence might have offered to establish that he was driving while intoxicated. Where the verdict reached is a general verdict, as in the instant case, we cannot determine to what extent the jury's verdict turned on the proof that the defendant refused to take the breathalyzer exam. Even if appellant here would have been convicted of DWI in the absence of that proof, he deserved the chance to argue his innocence based on the prosecutor's case without that evidence, rather than in the face of it.
For these reasons, I respectfully dissent.
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