Theresa Roberts v. State of Arkansas

ar05-626

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

THERESA ROBERTS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR05-626

FEBRUARY 1, 2006

APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT

[CR04-126 ED]

HONORABLE ALAN DAVID EPLEY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

At a bench trial in Carroll County Circuit Court, appellant Theresa Roberts was convicted of driving while intoxicated, first offense, and was sentenced to a total of twelve hours of community service and six hundred dollars in fines and costs. On appeal, she challenges her conviction asserting that the police failed to provide her reasonable assistance in obtaining a second test in violation of her constitutional due process right to obtain exculpatory evidence. We find no error and affirm.

On February 10, 2004, at approximately noon, Trooper Chad Hipps of the Arkansas State Police stopped appellant on Highway 62 just outside of Green Forest, Arkansas, for traveling seventy miles per hour in a fifty-five mile-an-hour zone. Upon making contact with appellant, the trooper smelled the odor of alcohol emanating from

her vehicle and saw an open beer can in the console, as well as a full case of beer on the front floorboard. Another case of beer had eight beers missing. After having appellant exit her vehicle, the trooper noticed that her eyes were red and watery and her speech was slurred. The trooper then administered three standard sobriety tests. Appellant failed all three. The trooper judged appellant to be too intoxicated to drive, arrested her for DWI, and transported her to the Carroll County Sheriff's Office.

For transport to the Sheriff's office, the trooper handcuffed appellant behind her back, placed her in the front seat, and put the seatbelt over her so that she could not go anywhere or use her arms. He placed her in the front seat of the car rather than the back because he routinely transported a dog in the back seat. He observed appellant during the transportation and saw nothing that would affect the breath test during that time.

At the Sheriff's office, before administering the breath test, the trooper read verbatim to appellant her rights from the implied consent form. Appellant chose to take the breath test and requested a second test, a blood test, prior to the first test being administered. The trooper told her that he would be happy to take her to the hospital in Berryville to have blood drawn. He further advised her that, based upon his prior experience, the hospital required cash to perform a blood test for alcohol when the suspect requests the test. Appellant asked how much the test cost. The trooper called the hospital to ask if they had changed their policy and asked specifically for the cost of the test. He stated that the hospital reaffirmed their cash-only policy and identified the cost at eighty-six dollars.

In response to this information, appellant said that she had a check book and a credit card, but not that much cash. The trooper replied by repeating that the hospital would take only cash, and offered to perform a second breath test. Appellant accepted the second breath test, and did not ask for any other assistance from that point such as requesting a phone book, calling a relative, or driving to a bank to obtain cash by either check or ATM withdrawal. The trooper also stated that in the past other suspects had requested that someone meet them at the hospital with money. When appellant made no other request for assistance, the trooper administered the breath test.

The trooper also testified that he would have passed by a bank on the way to the hospital, that the banks were open, and that it would have taken only a couple of minutes to stop and obtain the cash for the additional blood test that she was requesting. He explained that he did not stop by a bank because she did not ask him to drive her to the bank to obtain the cash. He further described appellant as timid and stated that she had told him that she was lost and from another town.

On appeal, appellant urges us to find that the trooper's assistance did not constitute reasonable assistance under the circumstances to assist the arrestee in getting the requested second test. See Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985); Lampkin v. State, 81 Ark. App. 434, 105 S.W.3d 363 (2003); Fiegel v. City of Cabot, 72 Ark. App. 146, 767 S.W.2d 539 (1989).

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 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), and the officer must provide only such assistance as is reasonable at the place and time. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). Whether the assistance provided was reasonable under the circumstances is a fact question for the trial judge to decide. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985); see also Fiegel, supra. In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993). We will only reverse if the ruling was clearly against the preponderance of the evidence. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992).

Under the facts of this case, we cannot reverse. In Williford, supra, our supreme court refused to reverse a case finding reasonable assistance where the arresting officer testified he told Williford that he would take Williford to the hospital for a test, for which the hospital required $50.31, but Williford had only $2.15. The officer also offered to allow Williford to use the telephone. There is no indication that Williford requested anything else. He did not testify at the trial. Our supreme court concluded that in view of the officer's testimony, the trial judge was right in denying the defense motion to exclude proof of the test result. The facts of this case are similar in that there is no indication that appellant requested any other assistance after her acknowledgement that she had insufficient cash to pay the hospital's fee for the blood test. Therefore, we find that the trial court's ruling was not clearly against the preponderance of the evidence.

Appellant urges us to adopt the reasoning of other state courts that have held that the potentially exculpatory nature of an arrestee's requested second test is so important that an arrestee's request falls within the umbrella of protection provided by the federal Sixth Amendment. She argues that we should adopt the reasoning of the Virginia appellate court in the case of Shoemaker v. Commonwealth, 441 S.E.2d 354 (Va. App. 1994). In that case, an arrestee requested a second test, and the arresting officer gave the arrestee a list of independent labs to which he could submit a blood sample for a second test. After the sample was drawn and submitted, the designated lab returned the sample unopened because the lab was not, by the time the sample was received, on the state-qualified list of labs. The trial court excluded the state's test results, because the state did nothing with the sample when it was returned leaving it unopened and untested. However, the trial court allowed the state to proceed in its prosecution based solely on the officer's testimony. The Virginia Court of Appeals ruled that the state's omission effectively foreclosed the defendant's opportunity to gather potentially exculpatory evidence and found that dismissal of the charge, rather than the suppression of the first test, was the proper remedy. Part of the court's reasoning was that a blood test constituted the best evidence of a defendant's level of intoxication, and the state had deprived the defendant of a significant method of establishing innocence. Shoemaker, 441 S.E.2d at 356.

Appellant also asks us to adopt the reasoning of the Tenessee criminal appellate court in State v. Livesay, 941 S.W.2d 63 (Crim. App. Tenn. 1996). The court in Livesay reasoned:

It is difficult to overstate the importance of evidence of blood alcohol content in DUI prosecutions. Our supreme court recently noted that the decision of whether to take a blood alcohol test by a person suspected of DUI was "a decision having such important consequences for his or her guilt or innocence," yet the decision must be made without benefit of counsel. State v. Frasier, 914 S.W.2d 467 (Tenn. 1996). The court further noted that any compromise of the accuracy of such a test "is a crucial consequence, given the importance of scientific evidence in DUI cases." Id.

This court has stated that "the defendant's greatest challenge to the accuracy of the breath test is the independent blood test to which each accused has a statutory right." State v. Johnson, 717 S.W.2d 298, 305 (Tenn. Crim. App. 1986).

In analyzing a similar issue, this court has stated:

It is necessary to state what this case does not involve. We are not here dealing with a case in which a defendant requests an opportunity to call his own doctor or other qualified person and have his doctor or other qualified person come to the jail or other place of incarceration and take a sample of blood. Under that described circumstance the defendant's due process rights would be violated if the police interfered with the defendant's right to obtain evidence necessary to his defense. The right of one in custody for driving under the influence to have a blood test by his own doctor or other qualified person at his own expense at the place of incarceration is well recognized by the Courts. See, Scarborough v. State, 261 So. 2d 475 (Miss.1972) cert. denied 410 U.S. 946, Brown v. Municipal Court, 86 Cal. App. 3d 357, 150 Cal. Rptr. 216 (2d Dist.1978); State v. Lewis, [266 S.C. 45, 221 S.E.2d 524] Supra at 526; and In Re Koehne, 54 Cal. 2d 757, 8 Cal. Rptr. 435, 356 P.2d 179, 180-81 (1960).

State v. Choate, 667 S.W.2d 111, 112 (Tenn.Crim.App.1983).

Livesay, at 64-65.

We recognize the wisdom in the reasoning of our sister states; however, the facts of this case do not demonstrate that the trial court erred in finding reasonable assistance. The arresting officer in this case offered to take appellant to the hospital for the test, and called the hospital to ascertain the cost of the test and the hospital's payment policy. Nothing in our case law requires the officer to structure proposals or options for the arrestee to pursue. 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. Accordingly, we affirm.

Affirmed.

Griffen and Vaught, JJ., agree.