Theodore Irving v. State of Arkansas
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DIVISION III
CACR07455
DECEMBER 19, 2007
THEODORE IRVING
APPELLANT
V.
APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT
[NO. CR2005215]
HON. JOHN S. PATTERSON,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant Theodore Irving appeals his conviction by a Franklin County jury on
charges of driving while intoxicated (DWI) and careless or hazardous driving, for which he
was sentenced to thirty days in the county jail and an $1100 fine. On appeal, appellant
argues that the circuit court erred in admitting the results from his blood test taken by a
hospital medical technologist because it was not in substantial compliance with Ark. Code
Ann. § 565204(d)(1). We disagree and affirm.
On February 3, 2005, appellant was involved in a onevehicle accident when he lost
control of his vehicle while maneuvering a curve. The responding State Police Officer,
Phillip Pierce, observed that the vehicle left marks in the northbound lane of travel and then
continued back to a ditch by the southbound lane where it came to a final stop. Trooper
Pierce noted extensive damage to the front end of the vehicle, smelled alcohol on appellant’s
person, and noticed the odor of alcohol in the vehicle itself, although no bottles, cans, or the
like were discovered in or around the vehicle. Appellant was unsteady on his feet, had
bloodshot eyes, and was bleeding from his nose and mouth. No field sobriety tests were
performed, and appellant was transported to Turner Mercy Hospital via ambulance. Trooper
Pierce requested that appellant submit to a blood test and explained the implied consent
rights to appellant. Delores Wilson, a medical technologist with the hospital, then drew the
blood and handed it to Trooper Pierce. Trooper Pierce then made arrangements to have the
blood sent to the Arkansas State Crime Laboratory, where the analysis indicated a blood
alcohol level of 0.25. Following a de novo appeal from the district court, a jury trial was
held on October 6, 2006. The jury found appellant guilty and sentenced him as previously
set forth. The judgment was filed on October 26, 2006, and appellant filed a timely notice
of appeal on November 20, 2006. This appeal followed.
The admissibility of evidence rests in the broad discretion of the trial court. Sauerwin
v. State, 363 Ark. 324, 214 S.W.3d 266 (2005). The specific applicable standard of review
is whether the trial court abused its discretion by admitting the results of his blood test based
upon its finding that there were sufficient facts present to show substantial compliance with
Ark. Code Ann. § 565204(d)(1). To qualify as an abuse of discretion, the trial court must
have acted improvidently, thoughtlessly, or without due consideration. Sauerwin, supra.
Further, appellant points out that it is the State’s burden to establish the admissibility of the
chemical analysis. See Tenner v. State, 88 Ark. App. 123, 195 S.W.3d 383 (2004).
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We note initially that the State argues that appellant failed to preserve this argument
for our review. The hospital medical technologist, Ms. Wilson, testified during the State’s
caseinchief regarding her qualifications, supervisory personnel, and the standard protocol
followed, without objection from appellant, followed by both crossexamination and re
direct. After her testimony was completed, appellant’s counsel made a motion to exclude
the testimony, and then, it was not in the appropriate form of an objection. Appellant’s
counsel made “a motion to exclude the drawing of blood in this case. There has to be, as the
[c]ourt well knows, testimony that the blood was drawn under direct supervision of a
physician. That’s the law; and they have not they have skirted away from it; and this
testimony is very weak in that area.”
An appellant’s failure to make a contemporaneous objection prevents him from
asserting any error on the part of the trial court for admitting the evidence. See McClain v.
State, 361 Ark. 133, 205 S.W.3d 123 (2005). An additional procedural problem occurred
when the State subsequently offered appellant’s bloodtest results for admission into
evidence during the direct examination of Trooper Pierce, and appellant’s counsel
specifically stated that he had no objection to its admission into evidence. Even if we were
to deem the earlier comments a proper objection, appellant’s failure to renew the objection
when the State attempted to introduce similar evidence, the actual test results from the blood
drawn by Ms. Wilson, would prevent him from raising the issue on appeal. See Lowry v.
State, 364 Ark. 6, 216 S.W.3d 101 (2005).
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Alternatively, were we to reach the merits of appellant’s argument, we would likewise
affirm based upon the following analysis. Arkansas Code Annotated section 565204(d)(1)
provides:
When a person submits to a blood test at the request of a law enforcement officer
under a provision of this section, blood may be drawn by a physician or a person
acting under the direction and supervision of a physician.
Ms. Wilson testified about drawing appellant’s blood, stating that she prepped the
area with a nonalcohol cleanser, labeled the tube with appellant’s name, and handed the
freshlydrawn blood sample to Trooper Pierce. She testified that she was working under the
supervision of Carol Carrick, the lab manager and a medical technologist, and Ms. Carrick’s
direct supervisor is the hospital administrator, who is not a physician. She also explained
that there was an emergencyroom physician on duty at the time, and although she did not
interact with the physician during the course of the withdrawal of blood from appellant, the
emergencyroom physician is always there and is the ultimate supervisor of the emergency
room.
Appellant submits that this testimony was not sufficient to establish the necessary
foundation to demonstrate that Ms. Wilson drew appellant’s blood under the direction and
supervision of a physician, as required by the statute, and that accordingly the test results
should have been excluded at trial. He acknowledges the holding in Gavin v. State, 309 Ark.
158, 827 S.W.2d 161 (1992), where our supreme court expressly held that a physician’s
presence is not required under Ark. Code Ann. § 565102(d)(1) provided that the nurse’s
normal duties included taking blood samples and standard hospital policy for extracting
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blood is followed; however, he claims that the instant case is distinguishable. He focuses
on Ms. Wilson’s mere assumption that the emergencyroom physician was her ultimate
supervisor at the time she drew the blood, even though she admitted acting under the
supervision of Ms. Carrick, another medical technologist. He also points out that no proof
was presented that it was normal hospital policy for blood to be drawn when a physician was
not present, and contends that the results in Gavin were admissible because the registered
nurse followed standard hospital policy in taking a defendant’s blood with a physician on
call but not present.
Appellant asserts that the admission of the bloodtest results into evidence clearly
demonstrates prejudice because it is unlikely that he would have been found guilty of DWI
in the absence of this proof. Specifically, Trooper Pierce acknowledged that he initially only
had a suspicion, rather than a stronglyheld opinion, that appellant was intoxicated, based
upon four factors: (1) he was unsteady on his feet; (2) his eyes were bloodshot; (3) he had
an odor of alcohol about his person; (4) his vehicle smelled of alcohol. Trooper Pierce stated
on redirect that his opinion that appellant was intoxicated was solidified once he got the
results from the crime lab, after which his “final opinion was that [appellant] was intoxicated
a hundred and ten percent.” Appellant points out that his injuries from hitting his head on
the windshield would explain why he was unsteady on his feet, and further states that
bloodshot eyes are equally as common to symptoms of fatigue and tiredness as with
intoxication.
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He contends that there was no testimony presented that contradicted his assertion that
the accident was actually caused by a defectivesteering mechanism that caused the steering
wheel to jerk from his hands just before the accident or his observation the next day of the
complete lack of powersteering fluid in the vehicle. Accordingly, he asks for a reversal of
the conviction.
The State counters, and we agree, that the trial court did not abuse its discretion in
admitting the evidence regarding the drawing of appellant’s blood. Ms. Wilson gave detailed
testimony about her qualifications and education, procedures, and protocol routinely used
at the hospital when taking blood for lawenforcement purposes, as well as providing
information about her supervisors at the hospital. The regulations promulgated by the
Arkansas Department of Health are to ensure that alcoholconcentration test results are
accurate, and we agree that the State proved substantial compliance therewith. Additionally,
the level of compliance goes to the weight of the evidence to be considered by the finder of
fact when considering the totality of the circumstances. See McKim v. State, 25 Ark. App.
176, 753 S.W.2d 295 (1988). The record reflects that she was a proper person to draw the
blood, under the supervision of Ms. Carrick and ultimately the ER physician on duty.
Despite appellant’s argument to the contrary, this case is quite similar to Gavin, supra.
Appellant also fails to demonstrate how the lack of direct physician supervision
pursuant to Ark. Code Ann. § 565204 affected the reliability of his blood test, and the State
argues that even if we were to determine that the admission of the results was error, the error
was harmless. The main purpose of the statute is to clarify who can withdraw blood,
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specifically medical personnel rather than lawenforcement, and their liability. Subsection
(e) allows a person to have an additional test to be administered by a physician, qualified
technician, registered nurse, or other qualified person. (Emphasis added.) Because appellant
does not specifically contest the actual method used for the blood draw or the competence
of Ms. Wilson, and because he fails to show any prejudicial error, any failure to follow the
statutory limitations of Ark. Code Ann. § 565204(d)(1) should not have resulted in the
exclusion of the test results.
Finally, even if appellant could show prejudice, the State maintains that any error was
harmless because there was overwhelming evidence of guilt. See Bledsoe v. State, 344 Ark.
86, 39 S.W.3d 760 (2001). Arkansas Code Annotated section 565103 provides for two
ways to prove DWI: (1) proving intoxication; or (2) proving an alcohol concentration in
breath or blood that is greater than (0.08). See Porter v. State, 356 Ark. 17, 145 S.W.3d 376
(2004). An officer’s observations and opinions with regard to the smell of alcohol and
actions consistent with intoxication can constitute competent evidence to support a DWI
conviction. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). It was the province
of the jury to determine the weight and credibility of the evidence. Wortham v. State, 65
Ark. App. 81, 985 S.W.2d 329 (1999). Even without the bloodtest results, there was
evidence from which the jury could have determined that appellant was intoxicated: (1) he
drove into a ditch; (2) he was unsteady on his feet; (3) he eyes were glassy and bloodshot;
(4) Trooper Pierce detected the odor of alcohol on his person and in his vehicle; (5) Trooper
Pierce still smelled the odor of alcohol when he spoke with appellant at the hospital; (6)
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appellant admitted to drinking the night before (although he said it was only a couple of
drinks); (7) appellant admitted taking Tylenol3 with codeine, which makes him sleepy, the
morning of the accident. While some of these indicators of intoxication could be attributed
to other causes, including the impact of the wreck, there was overwhelming evidence before
the jury from which they could have reached the conclusion that appellant was intoxicated
at the time of the accident, even absent the bloodtest results.
We affirm the conviction because appellant failed to preserved the issue for review,
and alternatively, because the trial court did not abuse its discretion in admitting the
evidence.
Affirmed.
GRIFFEN, J., agrees.
HART, J., concurs.
HART, J., concurring. I agree that this case must be affirmed. However, I disagree
with the majority’s conclusion that appellant’s argument has not been preserved, and even
if it had been, it was harmless error. This case is controlled by Gavin v. State, 309 Ark. 158,
827 S.W.2d 161 (1992), and I would affirm on that basis alone.
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