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ELSER v. STATE11/13/2002
at case, the prosecutor made a pretrial motion to prevent any reference to the portable breathalyzer test or its results. Dr. Roger Hawk, an assistant professor at the University of Arkansas at Little Rock, testified at the pretrial hearing as an expert on breathalyzers. The defense proffered his testimony for the reliability of the portable breathalyzer test, the results of a test he conducted, and his opinion on the results of the test administered to Patrick. After the hearing, the trial judge granted the prosecutor's motion and prevented any reference to the test, its results, or any testimony by the expert. Thereafter, the jury convicted Patrick of DWI. The supreme court reversed and remanded the jury verdict because Patrick was denied due process to present evidence of his innocence.
The State insists that the case at bar is distinguishable from Patrick. The State argues that appellant cannot use the portable-breathalyzer-test results to show the amount of alcohol in his blood. The State claims that Patrick limits the use of these results to establishing the absence of alcohol in a person's blood. In this instance, appellant sought to introduce the quantitative results of the portable breathalyzer test to refute the BAC Datamaster test results.
After carefully reviewing the supreme court's language in Patrick, we are convinced that the trial court should have allowed appellant to testify about the results of the portable breathalyzer test that Officer Hudson administered at the scene of the arrest. In Patrick, the court referred to the test results as "not so inherently unreliable that a jury cannot rationally evaluate it." Id. at 480, 750 S.W.2d at 394. The court also noted that such test results were necessary for Patrick to receive a fair trial. Here, appellant's testimony about the test results was crucial to his defense. The jury should have been allowed to weigh appellant's testimony about the test results from the portable breathalyzer against the test results from the BAC Datamaster.
Unlike Patrick, appellant did not proffer any evidence regarding the model of the portable breathalyzer that was used in his case, or its reliability for measuring the quantity of alcohol in his blood. However, we do not believe that this proffer was necessary for us to conduct a review of the matter. Rather, we believe that this type of evidence goes to the weight to be given to the portable-breathalyzer-test results rather than the admissibility of it.
We hold that the trial court abused its discretion by excluding appellant's testimony about the results of the portable breathalyzer.
Reversed and remanded.
STROUD, C.J., and BAKER, J., agree.
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