Opinion No. ( 1993 )

The Honorable Lu Hardin State Senator 2500 West Second Court Russellville, Arkansas 72801

Dear Senator Hardin:

This is in response to your request for an opinion regarding the following question:

Whether A.C.A. § 5-65-206(d)(2), which reads, `the person calibrating the machine and the operator of the machine shall be made available by the state for cross-examination by the defendant or his counsel of record upon reasonable notice to the prosecuting attorney,' applies to the BAC Datamaster machine?

It is my opinion that the answer to your question is "yes."

The provision of the Arkansas Code to which you refer in your question has been amended by Acts 1989, No. 928, § 1 and is codified at A.C.A. § 5-65-206(d)(2) (Supp. 1991); the current provision reads as follows:

Nothing in this section shall be deemed to abrogate a defendant's right of cross-examination of the person calibrating the machine, the operator of the machine, or any person performing work in the blood alcohol program of the Arkansas Department of Health, who shall be made available by the state if notice of intention to cross-examine is given ten (10) days prior to the date of hearing or trial.

In order for test results to be admissible under A.C.A. §5-65-206 (Supp. 1991) against a person charged with the offense of driving while intoxicated, the instrument used to obtain the results must be certified by the Arkansas State Board of Health. A.C.A. § 5-65-206(c) (d) (Supp. 1991). See Wells v. State,285 Ark. 9, 684 S.W.2d 248 (1985). If chemical analysis of a person's blood, urine, breath, or other bodily substance is obtained by a method not certified by the State Board of Health, the results of such analysis is not admissible under A.C.A. § 5-65-206 (Supp. 1991) and therefore, § 5-65-206(d)(2) (Supp. 1991) would be inapplicable. See Patrick v. State,295 Ark. 473, 750 S.W.2d 391 (1988). Therefore, the issue involved in your question is whether the BAC Datamaster machine is a method approved by the State Board of Health for conducting chemical analysis and therefore subject to the provisions in A.C.A. §5-65-206(d)(2) (Supp. 1991).

Pursuant to the Arkansas State Board of Health Regulations, the BAC Datamaster machine is an approved testing device for the determination of the presence of alcohol in a person's system.See Arkansas Dept. Health Reg. 4.30, pp. 29-30. Therefore, the BAC Datamaster machine falls within the scope of A.C.A. §5-65-206(d)(2) (Supp. 1991), and an operator of the machine can be subject to a defendant's right of cross-examination under that statute.

The foregoing opinion, which I hereby approve was prepared by Assistant Attorney General Nancy A. Hall.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh