Karl Kohler v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

KARL KOHLER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-153

NOVEMBER 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR99-4375,

HON. JOHN PLEGGE, JUDGE

AFFIRMED

Appellant, Karl Kohler, was convicted at a bench trial of driving while intoxicated. The trial of the case was continued three times because the State's witness from the Office of Alcohol Testing (OAT), whose cross-examination was requested by the appellant, was unable to be present for the scheduled trial dates. On appeal, Kohler argues that the trial court committed reversible error in granting the State's motions for continuance and that the trial court erred by allowing the State to introduce evidence of the results of a breath test without first establishing that the chemical analysis of Kohler's breath sample was performed by an approved method. We find no error, and affirm.

Facts and Procedural History

On May 17, 1999, Kohler wrecked his motorcycle, and Deputy Sheriff Jake Bowden was dispatched to the scene. Deputy Bowden administered field sobriety tests and, based on Kohler's inability to perform them properly, concluded that Kohler was intoxicated.

Bowden arrested Kohler and, once at the jail, administered a breath analysis test with a BAC DataMaster machine.

Kohler was convicted in the Pulaski County Municipal Court for first-offense driving while intoxicated, and he appealed to the Pulaski County Circuit Court, where his de novo trial was set for April 24, 2000. On April 6, 2000, Kohler's counsel, acting pursuant to Ark. Code Ann. § 5-65-206(d)(2) (Repl. 1997), requested that the prosecuting attorney ensure the presence of a witness from OAT for cross-examination at trial. However, because the statute had been amended and the applicable section renumbered, defense counsel's request referred to the wrong section of the statute, and the witness that he desired to cross-examine was not present at the trial. The prosecuting attorney explained to the trial court that, because of the miscommunication on the part of Kohler's attorney, he misunderstood defense counsel's request and did not have an employee from OAT available. The trial court granted a continuance and rescheduled the trial for October 9, 2000. Kohler made no objection to the continuance.

On the October 9 trial date, the State again moved for a continuance because none of the OAT employees were available to testify. The prosecuting attorney explained that the OAT staff consisted of only three people and that all three of them had a conflict with the October 9th date. Kohler objected to a continuance, but the trial court granted the State's motion and rescheduled the trial for October 16, 2000. On October 16, the prosecutor explained to the court that a witness from OAT had been subpoenaed, but that the subpoenaed witness was ill and could not be present, and the other two OAT employeeswere not available either. The trial court ordered the State to proceed with its case or to nolle prosse it. The State, noting that it cannot dismiss or nolle prosse a driving-while-intoxicated charge, elected to proceed.

When Deputy Bowden was called to testify, Kohler objected to any testimony from him verifying the results of the breath test he had administered unless the State first produced the OAT witness in accordance with Ark. Code Ann. § 5-65-206(d)(3) (Supp. 1999). Kohler argued that the testimony of an OAT witness about the reliability and accuracy of the breath test was a prerequisite to the admissibility of the results of the breath test administered by Deputy Bowden, and that he had a due process right "to be able to fully develop all the issues regarding the reliability and accuracy and credibility of the DataMaster." The trial court judge overruled the objection, but in doing so, stated that after all of the testimony was concluded, he would continue the case until the following Monday, and that if the State did not provide the OAT witness for cross-examination at that time, the case would be dismissed. The State then introduced certificates verifying that Bowden was certified to give a breath test, that the method of testing was approved by the State Board of Health, and that the machine had been certified in the three months prior to Kohler's arrest. Bowden also testified that appellant submitted to the breath test, and that the test produced a result of 0.118%. On the following Monday, the OAT witness appeared and was cross-examined by defense counsel.

Although set forth in his brief as a single point on appeal, Kohler argues (1) that the trial court abused its discretion by allowing the State three continuances to produce witnessesnecessary for the introduction of breath analysis evidence; and (2) that the trial court erred by admitting the breath analysis results into evidence. Because it is dispositive of the case, we first consider the second of Kohler's arguments.

Kohler argues that the trial court erred in receiving the results of the breath test into evidence without first requiring the State to produce the OAT witness for cross-examination. We do not agree. While it might have been more logical for the State to first prove that the method used to conduct the chemical analysis of Kohler's breath was reliable and accurate before it offered proof of the results of the analysis, we find nothing in the statutory requirements of Ark. Code Ann. § 5-65-206 (Supp. 2001) that requires the State to present its evidence in that order. The introduction of the results of the chemical breath analysis of a person charged with driving while intoxicated is controlled by Ark. Code Ann. § 5-65-206(c) and (d) (Supp. 2001), which is part of the Omnibus DWI Act. Under these sections, such evidence is admissible if (1) the method of testing has been approved by the State Board of Health, (2) the machine performing the chemical analysis has been certified in the three months preceding the arrest, and (3) the operator of the machine has been properly trained and certified. Although subsection (d)(3) preserves the right of the defendant to cross-examine the person calibrating the machine, the operator of the machine, or any person performing work in OAT, there is nothing in the statute that requires the State to make those persons available for cross-examination before it may introduce evidence of the results of the chemical analysis. If the State failed or refused to produce the requested witness for cross-examination, such failure could constitute a basis for the court's dismissal of thecharges. Furthermore, if the cross-examination of the requested witness established that the chemical analysis was not performed according to a method approved by the State Board of Health, that the machine performing the chemical analysis had not been properly certified, or that the operator had not been properly trained and certified, such proof could constitute a basis for the court's dismissal of the case or acquittal of the defendant. We find nothing in the Omnibus DWI Act that requires the State to produce the requested witness for cross-examination by a defendant prior to introducing the chemical analysis of a defendant's breath, blood, urine or other bodily substance.

In Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986), we held that Ark. Stat. Ann. § 75-1031.1, now codified as Ark. Code Ann. § 5-65-206, did not require proof of a breathalyzer's installation certificate before test results could be admitted into evidence. Also, in adopting the rationale of Johnson, supra, the supreme court, in Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990), held that under Ark. Code Ann. § 5-65-206(d)(1), neither a machine operator's testimony, nor his certificate, was a prerequisite to the introduction of the chemical analysis test results. Both Johnson, supra, and Smith, supra, are controlling here. Because of our holding that the testimony of the OAT witness is not a prerequisite to the introduction of the results of analysis of appellant's breath test, we also hold that appellant was not prejudiced by the delay in his cross-examination of the OAT witness that was occasioned by the court's granting of the State's motions for continuance.

Affirmed.

Griffen and Crabtree, JJ., agree.