{ "id": 1158942, "name": "STATE of Arkansas v. Michael AUD", "name_abbreviation": "State v. Aud", "decision_date": "2003-01-23", "docket_number": "CR 02-479", "first_page": "531", "last_page": "536", "citations": [ { "type": "official", "cite": "351 Ark. 531" }, { "type": "parallel", "cite": "95 S.W.3d 786" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "185 S.W. 788", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "123 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1556250 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/123/0449-01" ] }, { "cite": "330 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298612 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0594-01" ] }, { "cite": "868 S.W.2d 488", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1910564, 1910471 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0595-01", "/ark/315/0540-01" ] }, { "cite": "315 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910564 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0595-01" ] }, { "cite": "322 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447490 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0344-01" ] }, { "cite": "349 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513751 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0400-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 5-65-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 1 }, { "cite": "283 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879959 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "430" } ], "opinion_index": 1, "case_paths": [ "/ark/283/0425-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 1 } ], "analysis": { "cardinality": 572, "char_count": 10378, "ocr_confidence": 0.698, "pagerank": { "raw": 8.815110241156048e-08, "percentile": 0.4970343830856548 }, "sha256": "b032c4b67d172cf009f2ae2b3cf8d9d91a0fc475bea995e23d867b95889239b6", "simhash": "1:a561d224770ecdd6", "word_count": 1718 }, "last_updated": "2023-07-14T20:20:47.503009+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Arnold, C.J., not participating.", "Glaze and Imber, JJ., dissent.", "Imber, J., joins this dissent." ], "parties": [ "STATE of Arkansas v. Michael AUD" ], "opinions": [ { "text": "Ray Thornton, Justice.\nOn October 11, 1998, appellee, Michael Aud, was arrested for driving while intoxicated. A breathalyzer test administered at the time of arrest indicated a reading of 0.10% as the blood alcohol content.\nAt a bench trial held on November 26, 2001, and November 30, 2001, the results from appellee\u2019s breathalyzer test, together with evidence of possible contamination of the breath sample, the standard of accuracy of the breathalyzer machine, evidence concerning the circumstances leading to the stop, including the results of field sobriety tests, and other evidence was presented to the trial court.\nAt trial, the State argued that if a criminal defendant receives a 0.10% BAC reading from the breathalyzer machine, and this reading is admitted into evidence, an irrebuttable presumption of guilt is created. The trial court did not accept this argument, and based on the evidence presented at trial, the trial court determined that there was insufficient evidence to support a conviction for driving while intoxicated.\nIt is from appellee\u2019s acquittal that the State appeals. The State brings its appeal pursuant to Rule 3 of the Appellate Rules of Criminal Procedure. The rule provides:\nIf the Attorney General, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the State, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.\nArk. R. App. P. \u2014 Crim. 3(c). In State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002), we outlined the requirements for a State\u2019s appeal. We explained that in criminal cases:\nWe accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).\nAppeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State.\nHulum, supra.\nWith these legal principles in mind, we must determine whether the issue raised by the State involves a matter that is important to the correct and uniform administration of criminal law. In its only point on appeal, the State argues that \u201cthe trial court erred as a matter of law by acquitting the appellee on the basis that the breathalyzer is not an accurate method for measuring blood-alcohol content.\u201d We have carefully reviewed the proceedings before the trial court and the trial court\u2019s findings, and we conclude that the trial court did not acquit appellee based on a broad finding that results from breathalyzer tests are suspect. In fact, we note that the trial court found that \u201cthe test is probably as accurate as we can possibly get\u201d and the trial court stated that \u201cI think it\u2019s a fairly accurate test.\u201d Rather than challenging the accuracy of all breathalyzer machines, the trial court weighed the evidence presented at appellee\u2019s trial. The trial court considered evidence regarding the possible contamination of appellee\u2019s air sample, and testimony from the breathalyzer machine operator who stated that a variance of plus or minus 0.01% met the standards for approval of the breathalyzer machine set by the Arkansas Regulations for Alcohol Testing Manual established by the Department of Health. As previously noted, the trial court accepted the accuracy of the breathalyzer machine, and stated that the reading of 0.10% was right on the line. After reviewing the evidence, and determining the credibility of the witnesses, the trial court found that the State did not prove appellee\u2019s guilt beyond a reasonable doubt. Under these circumstances, we conclude that the State has failed to establish a proper appeal. Specifically, we conclude that the only issue presented in this appeal is whether the trial court erred in its consideration of the evidence. Resolution of this issue turns on facts that are unique to this case. Because resolution of this matter does not present an issue of interpretation of our criminal rules with widespread ramifications, we hold that this appeal does not involve the correct and uniform administration of the law. Accordingly, we dismiss the appeal.\nArnold, C.J., not participating.\nGlaze and Imber, JJ., dissent.\nAt the time of the arrest, the effective statute provided:\n(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.\n(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person\u2019s blood as determined by chemical test of the person\u2019s blood, urine, breath or other bodily substance.\nArkansas Code Annotated \u00a7 5-65-103 (Repl. 1997)(superseded).\nIn its review of the evidence, the trial court noted that resolution of the case depended upon the credibility of the witnesses. Specifically, the trial court stated:\nI think that the expert kind of helps to give the court a little understanding as to the mechanics and the science of how the breathalyzer works and why you should or should not accept it. But the bottom line is, whatever the results are, the accuracy \u2014 they [do not] fall within the range where the defendant was either . . . way above the legal limit or below the legal limit, but right at the line.\nSo the question really becomes . . . one of credibility. So do you believe the defendant when he says he only had four beers or do you believe that he had more? So, that, that\u2019s essentially what it boils down to.\nThe factors identified by the trial court as possible contaminates were: (1) appellee\u2019s having blown into the machine multiple times without cleaning the equipment, and (2) the presence of chewing tobacco in appellee\u2019s mouth at the time the breathalyzer test was performed.", "type": "majority", "author": "Ray Thornton, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting. This court\u2019s refusal to review appellee Michael Aud\u2019s case on appeal will produce dire future consequences in the trying of DWI cases across the state. The trial judge who acquitted Mr. Aud was well aware that, in doing so, his interpretation of Ark. Code Ann. \u00a7 5-65-103 (Repl. 1997), would invite \u201cmore and more experts\u201d to testify, challenging the validity of blood-alcohol content tests. Under this court\u2019s prior cases, the court has held this 1983 statute has made driving with a blood alcohol content of .10% or more illegal, per se. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The Lovell decision stated that a defendant was innocent until the state proved beyond a reasonable doubt that he or she was driving and that their blood alcohol measurement was .10% or more. Id. at 430. Until the case now before us, the State sustained its burden by proving that the defendant was driving and that his \u201cblood-alcohol measurement was .10% or more.\u201d\nA driver clearly retains the right to question whether the chemical analysis was performed according to methods approved by the Arkansas State Board of Health. See Ark. Code Ann. \u00a7 5-65-206 (Repl. 1997). Moreover, the driver also has the right to have a test administered by a physician or qualified technician, registered nurse, or other person qualified to administer a complete chemical test \u2014 blood, breath, or urine \u2014 in order to question the government\u2019s tests. See Ark. Code Ann. \u00a7 5-65-204(e) (Repl. 1997).\nIn the instant case, the trial court has added and engrafted another defense to Arkansas\u2019s DWI laws by allowing a purported expert witness to give his opinion questioning the breathalyzer test administered to Mr. Aud, stating that, while Aud\u2019s blood-alcohol measurement was .10% or more, such a measurement does not necessarily mean Aud actually had a blood-alcohol content of .10%. Again, until now, this court has upheld the constitutionality of Arkansas\u2019s DWI laws as a reasonable means of protecting the public safety, and that the State proves its case when it shows that the defendant driving has a blood-alcohol measurement of .10% or more.\nThe trial court in the present case strongly urged the parties to appeal to determine whether our DWI statutory provisions could be considered and interpreted to permit a defendant\u2019s expert testimony to show that a defendant\u2019s actual blood-alcohol content may differ from the statutory blood-alcohol measurement proved by the State. The trial court\u2019s expressed concern was that, if Mr. Aud prevails on appeal, more and more experts will be employed to offer drivers charged with DWI a defense that was not heretofore provided or recognized. Because the interpretation of this State\u2019s DWI laws will clearly have widespread ramifications and this court\u2019s holding would be important to the correct and uniform administration of our DWI statute, this court should take this on review instead of dodging a very difficult, controversial issue.\nImber, J., joins this dissent.\nThe 2001 Amendment changed the blood-alcohol content threshold to .08%. See Acts 2001, No. 561, \u00a7 2. Sections 5-65-206 and 5-65-204(e) referred to herein, infra, have also been modified by Act 561.\nThe State objected to Mr. Aud\u2019s expert witness because the witness was not qualified to operate a BAC machine.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Turbeville Law Firm, P.A., by: Richard N. TurbeviUe, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Michael AUD\nCR 02-479\n95 S.W.3d 786\nSupreme Court of Arkansas\nOpinion delivered January 23, 2003\nTurbeville Law Firm, P.A., by: Richard N. TurbeviUe, for appellant.\nMark Pryor, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0531-01", "first_page_order": 559, "last_page_order": 564 }