David Gullett v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DAVID GULLETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-561

February 1, 2006

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[CR-2004-120-2]

HON. PHILLIP H. SHIRRON, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

The Hot Spring Circuit Court found appellant David Gullett guilty of driving while intoxicated and sentenced him to a $300 fine, $300 in court costs, and a ninety-day suspension of his driver's license. On appeal he argues that the trial court erred in allowing the admission of his Breathalyzer test results because law-enforcement officers failed to assist Gullet with the administration of an additional blood-alcohol test in violation of Ark. Code Ann. § 5-65-204(e) (Supp. 2003). We find no error and affirm.

On September 2, 2003, at approximately 3:00 a.m., Deputy Christopher Hilborn of the Hot Spring County Sheriff's Department was patrolling the area around Lake Catherine when he noticed Gullett's vehicle. Deputy Hilborn approached the vehicle and noticed Gullet in the driver's seat with the keys in the ignition. Gullett was ordered to exit the vehicle. Gullett stumbled as he exited the vehicle, and Deputy Hilborn testified that he smelled an odor of intoxicants.

At Deputy Hilborn's request, Gullett submitted to several field sobriety tests-including the Horizontal Gaze Nystagmus test, the repeating of the ABCs, and the one-leg stand. After the field sobriety tests were completed, Gullett was transported to the Malvern Police Department for a BAC Datamaster test. Gullet was read his rights under the implied consent law and agreed to take the Breathalyzer test. The test produced a result of .180. The legal limit in Arkansas is 0.08. Following the administration of the Breathalyzer test, Gullett requested another test. He was informed that the second test would be conducted at his own expense but that if he were found not guilty he had the right to be reimbursed for the test. Deputy Hilborn then transported Gullett to the Malvern Hospital where blood was drawn for the second test. Gullett and the blood sample were returned to the station and, in order to avoid contamination, the sample was stored in the refrigerator. When Gullett was released from jail, he did not leave with the blood sample. He argues on appeal that because he was permitted to leave the police station without his blood sample in hand, the officers failed to offer the assistance required by Ark. Code Ann. § 5-65-204(e), and as a result the State should have been precluded from introducing the results of his Breathalyzer test at trial.

Arkansas Code Annotated § 5-65-204(e) states that a person who submits to a police-administered blood-alcohol test:

(1) [M]ay 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.

(2)The law enforcement officer shall advise the person in writing of this right and that if the person chooses to have an additional test and the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test.

(3) The refusal or failure of a law enforcement officer to advise a person of this right and to permit and assist the person to obtain a test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.

Ark. Code. Ann. § 5-65-204(e). 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.

Here, it is undisputed that Gullett was given notice of his right to obtain an additional test and his right to be reimbursed for that test if found not guilty. Moreover, it is further undisputed that Deputy Hilborn-upon Gullett's request for an additional test-assisted him by driving him to the Malvern Hospital, waiting until his blood sample was drawn, driving him back to the station for a period of observation, and protecting the blood sample from contamination by placing it in the refrigerator.

Gullett alleges that the fact that he was allowed to leave the station without his blood sample in hand violated § 5-65-204(e)(3). However, he does not allege that the officers refused to give him his sample. In fact, the record offers no explanation as to why Gullett left the station without his blood sample. The record reflects that Gullett's only attempts to retrieve his sample were made after he was instructed to do so by the court in a pre-trial court appearance. Gullett testified that he made two phone calls to the station and was instructed that Officer Brown was not available "to retrieve it for [him]." Deputy Hilborn testified that Gullett failed to take the sample with him when he was released and that Gullett was aware that it was his responsibility to take the sample when he was released.

Based on the evidence presented, we are satisfied that the officers' actions in assisting Gullett obtain a second blood-alcohol test were reasonable. Thus, Gullett's claim is without merit and the trial court did not err by allowing Gullett's Breathalyzer test results to be admitted into evidence.

Affirmed.

Griffen and Baker, JJ., agree.