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Moy v. State10/23/2002
ly trying to submit to a urine test. The trial judge disagreed that voluntary intoxication was a defense to this crime, and disagreed that appellant's choosing another test negated his refusal to take the test that the officer chose. The motion was denied, and appellant testified in his own defense.
Though appellant testified at first that he was not sure if he was intoxicated that night, he then admitted his intoxication in light of his guilty plea to DWI. Appellant stated that on the night in question he tried four times to blow into the portable breathalyzer at the scene. Appellant then wanted a different test, which is why he jotted it down on the form at the detention center. Appellant testified that the officer told him that if he did not take the breathalyzer test at the detention center, he would be put in jail. Appellant agreed that his response to the officer was to just put him in jail. Appellant renewed his motion, the State responded, and it was denied. The trial judge found appellant guilty, resulting in the present appeal.
In Arkansas, the driver of a vehicle is deemed under certain circumstances to have given consent to chemical testing to determine the level of intoxicants in his or her body. Those circumstances are outlined in Ark. Code Ann. § 5-65-202(a) (Repl. 1997), which provides:
(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person's blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.
That appellant fits into the category of persons deemed to have given consent is not in dispute.
Arkansas Code Annotated section 5-65-203 provides that the chemical test or tests shall be administered at the direction of the law enforcement officer, and the law enforcement agency bears the cost of the testing it seeks. The method for chemical testing must be according to those approved by the Arkansas Department of Health. Ark. Code Ann. § 5-65-204. Pursuant to Arkansas Code Annotated section 5-65-204(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. However, completion of the first test is the prerequisite to the right to an additional test. See McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).
Appellant argues that the State failed to prove his intent to refuse because he was under the impression that he had already complied and was entitled to another test of his choosing. We disagree. Appellant had not yet submitted to a breathalyzer test, and it was only upon completion of a breathalyzer test that he was entitled to have a urine test. See McEntire v. State, supra (holding that McEntire ei
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