Metzner v. State

¶1concurring in part and dissenting in part.

¶2I agree "with the majority’s conclusion to affirm appellant’s convictions. However, because I believe that the trial court erred by denying appellant’s motion to suppress the blood-alcohol testing results, I would affirm the trial court’s sentencing order on the basis that the trial court’s error was harmless in light of the other evidence at trial that appellant was guilty of driving while intoxicated.

¶3Arkansas Code Annotated section 5-65-205(a)(1) (Supp. 2013) states,

If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-202, no chemical test shall be given, and the person’s motor vehicle operator’s license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the person from whom the motor vehicle operator’s license was seized a temporary driving permit, as provided by § 5-65-402.

¶4At issue in this appeal is the impact of the phrase “no chemical test shall be given” in the above-quoted statutory language. Appellant contends that the inclusion of that language means that no test may be conducted under any circumstances unless provided for by another statute, such as Arkansas Code Annotated section 5-65-208, which mandates testing following an accident that results in a loss of human life or raises reason to believe that loss of human life will occur. The trial court found that section 5-65-205(a)(l) does not preclude obtaining a 112sample for testing pursuant to a warrant because the legislature did not intend this result when it passed the statute. The State argues, in this same vein, that section 5-65-205 was meant to apply only to warrantless seizures of a sample for testing.

¶5Although this case presents an issue of first impression in Arkansas, other states have considered similar arguments involving substantially similar statutory language and have reached different conclusions. In State v. Smith, 134 S.W.3d 35 (Mo.Ct.App.2003), a Missouri Court of Appeals, when considering this same issue under the refusal provision of Missouri’s implied-consent statute, which stated that if a person under arrest for suspicion of DWI refused to submit to a test then “none shall be given,” the court held that the clause did not prohibit a court from issuing a search warrant to obtain a sample of a defendant’s blood for chemical testing. In so holding, the court stated that the use of the passive voice in the statutory' language meant that it was directed at police officers and not a court, meaning that it applied only to warrantless searches by police.1

¶6In considering its own refusal provision, which contained the phrase, “none shall be given,” the Georgia Supreme Court held that the provision did not allow for the issuance of a warrant to obtain a sample for testing. State v. Collier, 279 Ga. 316, 612 S.E.2d 281 (2005). In so holding, the court stressed the mandatory nature of the usé of the word “shall” and noted that the legislature had put into the statute sanctions for a refusal to submit that did not include the Impossibility of testing being compelled through a warrant. Of particular interest, the court described the reasoning employed by the Missouri Court of Appeals in Smith and a Texas Court of Criminal Appeals in Beeman v. State, 86 S.W.3d 613 (Tex.Crim.App.2002), as “strained,” “unpersuasive,” and “made in ignorance of express statutory language.”

¶7I agree with the Georgia Supreme Court that the analysis used by the Missouri court in Smith is nonsensical. I believe that the reasoning used by the Georgia court in Collier and other state courts that have concluded that language similar to that employed in Arkansas’s refusal provision prohibits the use of a search warrant to obtain a sample for testing2 is better reasoned.

¶8As stated above, our refusal provision states that, in the event of a refusal by a defendant, no test shall be given. The first rule of statutory construction, to which all others must yield, is to give effect to the intent of the legislature. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998). We first seek the legislative intent by giving the words of the statute their usual and ordinary meaning in common language. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). If the language of the statute is not ambiguous and plainly states the legislature’s intent, we will look no further. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

¶9Here, the language employed by the legislature is clear and unambiguous. Therefore, 114the circuit court erred by determining the intent of the legislature to be different than that clearly expressed by the legislature itself in passing the statute. If the legislature did intend for samples to be obtained by warrant, then it should amend the statute to reflect this. Under the statute as currently worded, this court would be required to impose an exception for searches by warrant where none exists.

¶10I further believe that the trial court and State’s reliance on Arkansas Rules of Criminal Procedure 12.3 and 18.1 are misplaced. Rule 12.3 allows for a warrantless search of an accused’s blood stream, body cavities, and subcutaneous tissues under certain exigent circumstances in order to preserve evidence that might be destroyed in the period of delay needed to obtain a warrant. This was not a warrantless search, and while a search authorized by a warrant is preferable from a due process standpoint, I have concern about using Rule 12.3 to override section 5-65-205(a)(1), as it could open the door for warrantless searches in this type of situation, which would render the statute meaningless. This would be particularly unnecessary in this case, because it is not as though BAC results are the only evidence that can be used to prove DWI. Also, I do not believe that a rule of criminal procedure that generally states what is constitutionally permissible with regard to a search should be used to override a statute that specifically addresses a type of search. Rule 18.1 allows a judicial officer to require a defendant to permit taking samples of blood. However, the commentary to the Rule makes it clear that this Rule applies to taking such samples for identification purposes, which was not the purpose of taking appellant’s blood sample. I do not believe that Rule 18.1 applies in this case. For these reasons, I believe that the trial court’s ruling on the motion listo suppress was in error.

¶11That, however, is not the end of the necessary analysis. We will not reverse for evidentiary error absent a showing of prejudice. Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386. The trial court determined that appellant was guilty of DWI based on the testimony by Sergeant Hahn regarding appellant’s physical state and the indications of alcohol use that the sergeant observed. The trial court never mentioned the BAC results in its oral pronouncement of guilt from the bench. The testimony by Sergeant Hahn was sufficient to show, beyond a reasonable doubt, that appellant was impaired due to alcohol consumption while driving his vehicle. Thus, the BAC results were not necessary to obtain the conviction.

¶12I would affirm the sentencing order on the basis that the trial court committed harmless error by denying appellant’s motion to suppress.

¶15dissenting.

¶16While the majority pays lip service to the requirement that this court strictly construe criminal statutes, it ignored the clearly stated intent of the legislature and substituted its own opinion of how our DWI laws should be structured.- Typical of when this court ignores the law, the majority attempts to justify its action as an attempt to avoid an “absurd” result. I respectfully dissent.

¶17When, as in the case before us, a driver is stopped at a sobriety checkpoint, and he or she refuses to submit to a blood test, the plain wording of Arkansas Code Annotated section 5-65-205 applies. The phrase, “no chemical test shall be given,” means exactly that. This is a circumstance in which no one, not even the driver himself, has been injured. While it is absolutely an intolerable error in judgment to drive after drinking, and I do not want to in any |1fiway suggest that I am endorsing the practice, this circumstance is the lowest-level violation of our DWI laws. Obviously, this is a less serious offense than the circumstance in which someone has been killed. Our legislature so wisely recognized that, in circumstances where human life has been lost, or is in danger of being lost, allowing a driver to withdraw his or her consent to a chemical test is not reasonable. Ark.Code Ann. § 5-65-208.1

¶18|17I disagree that it is “illogical” for the legislature. to forbid all chemical testing after a section 5-65-205 refusal to submit and then mandate it under section 5-65-208. This is not “illogical,” but consistent with the requirements of our federal and state constitutions that the search not be unreasonable. Unreasonable means that the government intrusion is disproportionate to the seriousness of the offense. Even where a driver submits to chemical testing, the legislature only permits the police to administer the test if they have “reasonable cause” to believe that the driver has a blood-alcohol level of .08. Ark.Code Ann. § 5-65-20 (Repl. 2005). Moreover, the refusal to submit carries a significant penalty and does not bar the prosecution of a driver for driving while intoxicated.2 Here, there was substantial evidence of intoxication provided by Metz-ner’s reaction to the sobriety checkpoint, the odor of intoxicants about his person, and his unsteadiness on his feet, and the circuit judge so found this evidence supported the conviction.3

¶19|islt is disconcerting that the majority has shirked its duty by ignoring both our federal and state constitutions and interprets a criminal statute in a way that empowers the State to intrude into the lives of its citizens in ways that the people, through their elected legislature, clearly did not authorize.

¶20The Fourth Amendment to the United States Constitution and article 2, section 15, of the Arkansas Constitution are virtually identical. I recognize that impaired driving must be curtailed to preserve the safety and well-being of the people, however, our constitutions recognize that the mechanism for dealing with such conduct — government intrusion into the lives of its citizens — is a powerful and oppressive tool that must be used with great restraint. That is why they guarantee that the people “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The key •word is “unreasonable.”

¶21The most intrusive of all searches is the search of the interior of a person’s body. A search incident to arrest of a person’s body is governed by Arkansas Rule of Criminal Procedure 12.3. While Rule 12.3 deals specifically with warrantless searches, it is nonetheless instructive. It states:

(a) Search of an accused’s blood stream, body cavities, and subcutaneous tissues conducted incidental to an arrest may be made only:

(i) if there is a strong probability that it will disclose things subject to seizure and related to the offense for which the individual was arrested; and

119(ii) if it reasonably appears that the delay consequent upon procurement of a search warrant would probably result in the disappearance or destruction of the objects of the search; and

(iii) if it reasonably appears that the search is otherwise reasonable under the circumstances of the case, including the seriousness of the offense and the nature of the invasion of the individual’s person.

(b) Any search pursuant to this rule shall be conducted by a physician or a licensed nurse.

¶22In large part, the “reasonableness” of a search of a person’s blood is determined by the circumstances of the case and the seriousness of the offense. The General Assembly determined that intoxication is defined by a blood-alcohol level of 0.8. Ark.Code Ann. § 5-65-103. It also determined how that the blood alcohol content of a person’s bloodstream may be determined and under what circumstances it is reasonable to make a test of a driver’s blood mandatory. Ark.Code Ann. §§ 5-65-204 & 208. It is not for the courts to usurp the power of the legislature by ignoring the plain wording of a statute.