Briggs v. State ( 2015 )

Cite as 2015 Ark. App. 364
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-14-947
WILLIAM BRIGGS Opinion Delivered JUNE 3, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT, FIRST
DIVISION
[NO. 60CR-13-1580]
STATE OF ARKANSAS
APPELLEE HONORABLE LEON JOHNSON,
JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
William Briggs was tried by the court and found guilty of the offense of DWI-first
offense. He appeals, contending the trial court erred 1) in admitting the Intoximeter results
because he did not receive his requested second test and 2) in finding sufficient evidence to
support the conviction. We affirm.
At 1:55 a.m. on August 16, 2012, Trooper Alan Johnson of the Arkansas State Police
was sent to investigate a single-vehicle incident involving a car reportedly on fire off I-530.
Upon arriving at the scene, Trooper Johnson found Briggs, who told him the vehicle was his
and that he had been driving it. Trooper Johnson testified the vehicle was engulfed in flames;
Briggs was “a little unsteady” and had the odor of intoxicants; and Briggs reported the accident
occurred because he swerved to miss an animal on the road. Trooper Johnson explained his
investigation of the scene did not support Briggs’s explanation; it was more supportive of the
Cite as 2015 Ark. App. 364
car missing the exit and Briggs losing control in trying to correct; and there was no evidence
of braking or other indications of avoidance maneuvers to miss an animal. He stated he did
not conduct an investigation to determine the cause of the fire, but it was very dry in the area.
According to Trooper Johnson, the circumstances of the vehicle collision, his observations of
Briggs’s unsteadiness, and the odor of intoxicants caused him to believe further DWI tests were
indicated. Briggs was very cooperative, and Trooper Johnson took Briggs to the Sherwood
Police Department to conduct a DWI investigation involving an Intoximeter instrument,
which Trooper Johnson was certified to perform.
He stated it did not take him long to get to the scene of the accident because he was
in the area looking for a subject about whom they had received a report of intoxication from
a taxi-cab driver; the driver had reported he had dropped a passenger off and felt the subject
was too intoxicated to drive; and when he received the report on the vehicle incident, he
considered Briggs might be the person reported by the taxi driver. Trooper Johnson stated
that because of Briggs’s age (77), “some particular ailments which prevent[ed] a full battery of
[field sobriety tests],” and the fact that Briggs had been involved in the vehicle accident, he did
not think the field-sobriety types of tests would be effective, and the tests could not be
conducted safely at that location.
He further explained how he informs subjects of the rules and their rights before
administering a breathalyzer test, i.e., reading the form, getting verbal responses, and having
the subject initial paragraphs indicating his or her understanding and consent to the test. He
testified that Briggs seemed to understand everything being explained to him and agreed to
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take the test. He identified State’s Exhibit 1, which was a copy of the rights form Briggs
signed.
He testified the form showed Briggs was informed of his right to a second test, and
Briggs indicated the desire for one. Trooper Johnson also acknowledged that he knew he was
obligated to provide Briggs with reasonable assistance in getting the second test. He candidly
admitted he did not specifically recall his conversation with Briggs but explained he has
conducted over 800 breathalyzer tests. He testified it is his practice always to tell subjects who
are being released from the facility late at night, which was true of Briggs, that such tests will
have to be conducted at a hospital emergency room, and the additional testing will be at the
subject’s expense. He stated that he did not take Briggs to get another test when Briggs was
released; he took Briggs to his house located “somewhere off Roosevelt.”
Defense counsel objected to the introduction of the breathalyzer-test results, arguing
that Arkansas Code Annotated section 5-65-204(e) “precludes admittance of the BAC if—if
the Defendant requests a second test. He did request a second test. The second test wasn’t
given to him; therefore, we ask that we—we ask that the BAC results not be admitted in this
case.” The State responded that Trooper Johnson had explained if a subject wants a second
test, and they have the funds to take the second test, they get the second test; the fact that
Trooper Johnson took Briggs home indicated Briggs did not have the funds; and there is no
requirement that the officer provide anything more than reasonable assistance in taking the
second test. The State emphasized that reasonable assistance does not require an officer to pay
for the subject’s additional tests—that a second test would have been at Briggs’s own expense.
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Defense counsel countered by arguing that Trooper Johnson could have assisted Briggs by
taking him to an ATM or to his family and helped him get the money. The trial court
explained substantial compliance is what is required under the statute and overruled the
objection.
The results of the breathalyzer test showed a final result of .09. Trooper Johnson
explained he arrived on the scene at 1:55 a.m.; arrived at the Sherwood station at
approximately 2:50 a.m.; the first test was administered at 2:53 a.m.; the original sample was
.099; and the second one, taken two minutes later, was .102. He stated a rise of that nature
would be impossible; Briggs would have had to drink in the back of the police car or at the
police station within that hour; the first time he ever heard of Briggs taking a bottle out of his
vehicle to drink while his car was burning was at the district-court level; and Briggs never told
him that on the night in question. Trooper Johnson also explained further that typical
reactions in trying to avoid something on the road are to brake, leaving skid marks, or to
swerve, causing a “yawl,” which happens when the vehicle is still traveling in a forward
momentum but sideways. He testified neither of those marks was found at the scene. The
State rested its case, and Briggs moved for a directed verdict, which was denied.
First, we address Briggs’s second argument, which challenges the sufficiency of the
evidence supporting his conviction for DWI-first offense. We examine challenges to the
sufficiency of the evidence, before examining trial error, because of the prohibitions against
double jeopardy. Watkins v. State, 2010 Ark. App. 85, 377 S.W.3d 286. In addressing
challenges to the sufficiency of the evidence, we review the evidence in the light most
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favorable to the State as the prevailing party, and affirm if the conviction is supported by
substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and
character that it will, with reasonable certainty, compel a conclusion one way or the other,
without resort to speculation or conjecture. Id.
In challenging the sufficiency of the evidence, Briggs essentially contends that because
the breathalyzer results should have been excluded (his remaining argument), the evidence
does not support his conviction. However, in reviewing a challenge to the sufficiency of
evidence, we examine all of the evidence submitted before addressing alleged trial error. Id.
Here, the evidence established Briggs was driving the vehicle; he exhibited unsteadiness and
the odor of intoxicants; he was administered a breathalyzer test; and the breathalyzer results
showed intoxication. Those circumstances constitute substantial evidence of DWI.
For his remaining point, Briggs contends that the trial court erred in admitting the
Intoximeter results because he did not receive his requested second test. We disagree.
At the time of the offense, Arkansas Code Annotated section 5-65-204(e) (Repl. 2005)
provided:
(e)(1) The person tested may have a physician or a qualified technician,
registered nurse, or other qualified person of his or her own choice administer a
complete chemical test in addition to any chemical test administered at the direction
of a law enforcement officer.
(2) The law enforcement officer shall advise the person in writing of the right
provided in subdivision (e)(1) of this section and that if the person chooses to have an
additional chemical test and the person is found not guilty, the arresting law
enforcement agency shall reimburse the person for the cost of the additional chemical
test.
(3) The refusal or failure of a law enforcement officer to advise a person of the
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right provided in subdivision (e)(1) of this section and to permit and assist the person
to obtain a chemical test under subdivision (e)(1) of this section precludes the admission
of evidence relating to a chemical test taken at the direction of a law enforcement
officer.
Our court explained the applicable burden of proof and standard of review with respect to this
statute in Ebel v. State, 2014 Ark. App. 588, at 2, 445 S.W.3d 553, 554:
When a defendant moves to exclude a test pursuant to section 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. The initial test result may be admitted into evidence if there
was substantial compliance with the statute. Furthermore, the officer must provide
only such assistance in obtaining an additional test as is reasonable under the
circumstances presented. Whether the assistance provided was reasonable under the
circumstances is ordinarily a fact question for the trial court to decide. It is for the trial
court to weigh the evidence and resolve the credibility of the witnesses. We will not
reverse the trial court’s ruling on the admission of evidence absent an abuse of
discretion and a showing of prejudice.
(Internal citations omitted.)
In Ebel, our court affirmed the trial court’s ruling that the officer’s actions constituted
reasonable assistance and substantial compliance with the statute. After a breathalyzer test was
administered on Ebel at the sheriff’s office, he requested a second test and stated he had the
means to pay for it. The officer transported Ebel to the hospital, where his debit card was
declined twice. The officer denied Ebel’s request to call his parents, who lived in another
town, and have them bring money to the hospital. We explained that the officer had no duty
to allow Ebel to call his parents to bring money, and we found no clear error in the trial
court’s finding that the officer’s actions constituted reasonable assistance under the
circumstances and in its determination that the officer substantially complied with the statute.
Briggs contends that Trooper Johnson “was not able to testify to any assistance that was
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given,” “[n]o phone calls, no telephone books, no information regarding local hospitals or
payments, and most importantly according to this Court, no transportation”; and that Trooper
Johnson testified as to his regular practices and procedures, but could not testify with any
specificity regarding his interaction with Briggs other than recalling he drove Briggs home.
Consequently, Briggs concludes that the trial court erred in allowing the breathalyzer test
results into evidence. We disagree.
We find no clear error in the trial court’s finding that Trooper Johnson substantially
complied with the statutory requirements for providing reasonable assistance under the
circumstances in obtaining a second test. We applaud Trooper Johnson’s candor in
acknowledging he could not remember the specifics of his conversation with Briggs, but
explaining his standard practice in dealing with over 800 such situations is to advise the subject
of his right to obtain a second test verbally and in writing, which was established with the
introduction of the rights form signed by Briggs; to explain that the cost of a second test is the
subject’s responsibility; and upon release from custody late at night, which was true in Briggs’s
situation, to advise subjects that due to the late hour a second test would need to be
administered at the local emergency room. We do not agree under the circumstances
presented here that “reasonable assistance” required Trooper Johnson to chauffeur Briggs to
an ATM or to his family to get money to pay for the second test.
Affirmed.
ABRAMSON and BROWN, JJ., agree.
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Cite as 2015 Ark. App. 364
Llewellyn J. Marczuk, Deputy Public Defender, by: Mary Kathryn Williams, Deputy Public
Defender, for appellant.
Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.
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