{ "id": 6137628, "name": "Leonard KAY v. STATE of Arkansas", "name_abbreviation": "Kay v. State", "decision_date": "1994-06-15", "docket_number": "CA CR 93-576", "first_page": "82", "last_page": "87", "citations": [ { "type": "official", "cite": "46 Ark. App. 82" }, { "type": "parallel", "cite": "877 S.W.2d 957" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "27 Ark. App. 146", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139111 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0146-01" ] }, { "cite": "285 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877696 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0070-01" ] }, { "cite": "284 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878616 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0449-01" ] }, { "cite": "286 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719135 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0215-01" ] }, { "cite": "305 Ark. 470", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916742 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "472" }, { "page": "763-64" } ], "opinion_index": 0, "case_paths": [ "/ark/305/0470-01" ] }, { "cite": "42 Ark. App. 134", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138809 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0134-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "43 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140046 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/43/0190-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 1 } ], "analysis": { "cardinality": 502, "char_count": 10723, "ocr_confidence": 0.879, "pagerank": { "raw": 1.6488271518060244e-07, "percentile": 0.6923693234624876 }, "sha256": "16eb38b50c0d38251ae04cc9671672039a7bb9a03052fc70f134f9b1670ade12", "simhash": "1:1befc9e41d2aab7b", "word_count": 1765 }, "last_updated": "2023-07-14T21:17:20.155315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Robbins, JJ., dissent." ], "parties": [ "Leonard KAY v. STATE of Arkansas" ], "opinions": [ { "text": "John Mauzy Pittman, Judge.\nLeonard Kay appeals from his conviction at a bench trial of driving while intoxicated, second offense. He contends that the trial court erred in admitting into evidence the results of a breathalyzer test given at the direction of the arresting officer. We affirm.\nPrior to his trial, appellant moved to exclude evidence of the breathalyzer test on grounds that the officer had failed to advise appellant of his right to an additional test and to assist him in obtaining such a test as required by Ark. Code Ann. \u00a7 5-65-204(e) (Repl. 1993). That section provides:\nThe 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.\n(1) The law enforcement officer shall advise the person of this right.\n(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.\nAppellant\u2019s motion was denied after a hearing, and the results of the breathalyzer test were admitted against appellant at trial.\nAt the hearing on appellant\u2019s motion, Officer Ben Cross of the Russellville Police Department testified that he stopped appellant\u2019s vehicle at approximately 7:00 p.m. on February 21, 1992. After administering several field sobriety tests, Officer Cross arrested appellant for DWI and took him to the police department for a breathalyzer test. Officer Cross testified that he read appellant his rights regarding the administration of the test from a standard rights form. The form specifically included appellant\u2019s right to have, at his own expense, a physician, qualified technician, registered nurse, or other qualified person of appellant\u2019s choice administer a separate blood, breath, or urine test. It also stated that the Russellville Police Department would assist appellant in obtaining the additional test. Appellant signed the rights form, acknowledging his understanding of the rights, and agreed to take the breathalyzer. The test results showed appellant\u2019s blood-alcohol level to be .218 percent.\nAppellant then asserted his right to an additional test. Officer Cross testified that he told appellant that St. Mary\u2019s Hospital would perform the test for approximately $400.00. The officer testified that St. Mary\u2019s was readily accessible and, to the best of his knowledge, the only facility within his jurisdiction available to perform the blood test. Appellant told the officer that he did not have $400.00 in cash, but insisted that he had checks, that he had an account at St. Mary\u2019s, and that the hospital would accept his check. Officer Cross told appellant that, as far as he knew, the hospital had a cash-only policy regarding DWI blood tests. Due to appellant\u2019s insistence, Officer Cross telephoned the emergency room at St. Mary\u2019s, informed hospital personnel that he had appellant in custody, and asked whether appellant\u2019s check would be accepted. The officer testified that he was told that the hospital would accept cash only, payable before performance of the test. Officer Cross testified that appellant, who appeared extremely intoxicated, became very argumentative, saying over and over, \u201cI\u2019ve got checks. I can pay for it.\u201d The officer did not recall appellant saying anything about credit cards. Nor did the officer recall appellant asking to be taken to any other facility, mentioning any other type of test (breath or urine), or requesting any other form of assistance. Because appellant did not have the necessary funds, the officer refused to take appellant to St. Mary\u2019s.\nOn cross-examination, Officer Cross admitted that he had heard that St. Mary\u2019s was a very expensive hospital. He denied, however, knowing the prices charged for blood tests by other facilities. He also denied that St. Mary\u2019s was the only facility to which he would take a person for an additional test, stating that he would take a suspect to see the qualified person the suspect desired to see.\nAppellant also testified at the hearing on his motion. He admitted that Officer Cross informed him of his rights by reading the rights form to him. Appellant testified that he asserted his right to a blood test as his additional test. He testified that he told the officer that he had with him $200.00 in cash, a couple of checks, and credit cards. Appellant stated that Officer Cross told him that he could not have a blood test unless he had $400.00 in cash. Appellant testified that, subsequent to the date of his arrest, he learned of two or three area medical clinics that perform blood-alcohol tests, including the clinic with which appellant\u2019s personal physician is associated. Appellant also testified that his doctor\u2019s clinic would accept checks and credit cards. Appellant did not know the accepted methods of payment at the other facilities to which he referred. Nor was there any proof as to the cost of a blood alcohol test at any of the clinics. Moreover, appellant admitted that he never mentioned or asked to be taken to any facility other than St. Mary\u2019s. Appellant also admitted that he never asked to telephone a friend or relative who might bring him money for the test. Appellant concluded his testimony by stating that what he found unreasonable was Officer Cross\u2019s failure to \u201ctake[] me to St. Mary\u2019s where I could have made arrangements for payment and gotten my test.\u201d\nThe parties stipulated that a phone call was placed to St. Mary\u2019s on the day of the hearing (October 19, 1992)' and that hospital personnel stated that credit cards would be accepted for DWI blood-alcohol tests. However, the stipulation did not touch on how long that had been hospital policy. Nor did it touch on whether checks would be accepted.\nWe note that appellant\u2019s motion was not one to \u201csuppress\u201d evidence under Ark. R. Crim. P. 16.2. Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993). Nevertheless, when a defendant moves to exclude a test pursuant to \u00a7 5-65-204(e)(2), 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. See McEntire v. State, 305 Ark. 470, 472, 808 S.W.2d 762, 763-64 (1991). Substantial compliance with the statutory provision about the advice that must be given is all that is required. Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985). Furthermore, the officer must provide only such assistance in obtaining an additional test as is reasonable under the circumstances presented. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). Whether the assistance provided was reasonable under the circumstances is ordinarily a fact question for the trial court to decide. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985); Fiegel v. City of Cabot, 27 Ark. App. 146, 767 S.W.2d 539 (1989). It is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Girdner v. State, supra.\nFrom our review of the record, we cannot conclude that the trial court erred in denying appellant\u2019s motion. According to the testimony of both Officer Cross and appellant, the officer\u2019s advice concerning appellant\u2019s right to an additional test by the person of his choice literally complied with the statute. And, in light of all of the circumstances in this case, we cannot say that the trial court\u2019s finding of reasonable assistance to obtain another test is clearly against the preponderance of the evidence.\nAffirmed.\nCooper and Robbins, JJ., dissent.", "type": "majority", "author": "John Mauzy Pittman, Judge." }, { "text": "James R. Cooper, Judge,\ndissenting. I dissent because I cannot agree that the Russellville Police Department provided the appellant with reasonable assistance in obtaining an additional test, as required by Ark. Code Ann. \u00a7 5-65-204 (Repl. 1993). That statute provides that, if a breathalyzer test is administered to a DWI suspect by police authorities:\n(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.\n(1) The law enforcement officer shall advise the person of this right.\n(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.\n(Emphasis added).\nWe found that reasonable assistance was rendered in Hudson v. State, 43 Ark. App. 190, 863 S.W.2d 323 (1993). However, in that case police officers transported the appellant to a local hospital, where the appellant declined to have a blood specimen taken for a blood alcohol test. In the case at bar, the appellant never had the opportunity to have such a test administered because the police officer refused to take him to St. Mary\u2019s hospital after informing him that this was the only facility within his jurisdiction which was available to perform the blood test.\nClearly, the \u201cassistance\u201d offered the appellant focused his efforts to obtain an additional test on one particular facility which, Officer Cross admitted, was known to him to be a \u201cvery expensive\u201d hospital. This is certainly borne out by the $400.00 price charged for the test. Perhaps the level of assistance offered would have been reasonable had the police officer transported the appellant to the hospital to allow him to make arrangements with the staff regarding available tests and payment options. However, to focus the appellant\u2019s efforts to obtain an additional test on a hospital known to be very expensive which requires payment in cash, and then to refuse to transport him to that facility because he, predictably, does not have sufficient funds on his person, is no assistance whatsoever. I believe that the \u201cassistance\u201d offered the appellant actually had a chilling effect on his right to have an additional test, and that more actual assistance would have been rendered by merely providing the appellant with a telephone and a local directory.\nI respectfully dissent.\nRobbins, J., joins in this dissent.", "type": "dissent", "author": "James R. Cooper, Judge," } ], "attorneys": [ "James Dunham, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Leonard KAY v. STATE of Arkansas\nCA CR 93-576\n877 S.W.2d 957\nCourt of Appeals of Arkansas En Banc\nOpinion delivered June 15, 1994\n[Rehearing denied August 17, 1994.]\nJames Dunham, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee.\nCooper and Robbins, JJ., would grant rehearing." }, "file_name": "0082-01", "first_page_order": 106, "last_page_order": 111 }