Amy Reynolds v. State of Arkansas
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DIVISION I
CACR06-403
OCTOBER 25, 2006
AMY REYNOLDS
APPELLANT
v.
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[CR2005-2025-1]
STATE OF ARKANSAS
APPELLEE
HONORABLE WILLIAM A. STOREY,
JUDGE
AFFIRMED
K AREN R. B AKER, Judge
Appellant Amy Reynolds appeals her conviction for driving while intoxicated asserting
that the circuit court erred in denying her motion in limine to exclude the results of her breath
test under the provision of Ark. Code Ann. section 5-65-204(e) (Repl. 2005). She argues that the
results of the breathalyzer should have been excluded because the statement of rights read to her
by the law-enforcement officers did not specifically state that she had the right to have a person
of her choice administer an additional test. We find no error and affirm.
Arkansas Code Annotated section 5-65-204(e) provides that:
(e) The person tested may have a physician or a qualified technician, registered nurse, or
other qualified person of his or her own choice administer a complete chemical test in
addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) The refusal or failure of a law enforcement officer to advise such person of this right
and to permit and assist the person to obtain such test shall preclude the admission of
evidence relating to the test taken at the direction of a law enforcement officer.
The initial test result may be admitted into evidence if there was substantial compliance
with the statute. Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); see also Daniels v.
State, 84 Ark. App. 263, 139 S.W.3d 140 (2003). When a defendant moves to exclude a test
pursuant to § 5-65-204(e)(3), the State bears the burden of proving by a preponderance of the
evidence that the defendant was advised of his right to have an additional test performed and that
he was assisted in obtaining a test. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).
Substantial compliance with the statutory provision (e)(3) is all that is required. Kay v. State, 46
Ark. App. 82, 877 S.W.2d 957 (1994). Whether the assistance provided was reasonable under
the circumstances is ordinarily a fact question for the trial court to decide. Id.
The challenged provision of the statement of rights read to, and signed by, appellant
states:
If you disagree with the results of this test, you may request another chemical test of your
choice and I will assist you in obtaining it. The additional test may be of either your
breath, blood or urine administered by a qualified person such as a doctor, registered
nurse, or technician other than a law enforcement officer.
Although the notice to appellant by the officers that she had the right to have a
subsequent or different test was not as complete as it could have been,1 we do not find error in
allowing the test result to be introduced. See Spicer v. State, 284 Ark. 315, 681 S.W.2d 369
(1984)(allowing introduction of breath alcohol test where accused was notified of right to
different type of test but notice did not mention person of choice for administration of test).
Appellant was notified she could request a test of a different type, but she made no such request.
Nothing in our case law requires the officer to structure proposals or options for the arrestee to
1
The repetition of the prepositional phrase “of your choice” to modify “a qualified
person” would have alleviated any possible confusion as to whether appellant had the right to
have a person of her choice administer an additional test.
-2-
pursue. We are not here addressing a situation in which an accused requests an opportunity to
call her own doctor or other qualified person and have her doctor or other qualified person come
to the jail or other place of incarceration and take a sample of blood. While there may have been
other courses of action that would have been reasonable for the officer to assist appellant in
pursuing had she requested, appellant made no other requests for assistance or proposed other
options. Under these circumstances, we do not believe the notice precluded appellant from
requesting another breathalyzer test. Nor do we find that the officers could have reasonably
assisted her but did not.
Accordingly, we affirm.
GLADWIN and ROBBINS, JJ., agree.
-3-
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