Massengale v. State

¶1dissenting. The appellant in this criminal case has filed a petition for rehearing asserting that our decision of September 21, 1994, is erroneous because a timely objection was in fact made to Officer Lovaas’ testimony regarding the results of the portable breathalyzer test, and because the trial court’s denial of the appellant’s pretrial motion in limine regarding the test results preserved the argument for appeal. The majority has denied the appellant’s petition for rehearing, and I dissent because I believe that the appellant’s argument was preserved and should therefore have been addressed on its merits.

¶2Our opinion of September 21, 1994, held that the appellant’s argument was not preserved for review because no objection was made when Officer Lovaas testified concerning the test results. However, the appellant filed a pretrial motion in limine requesting exclusion of the test results which was denied.1 Our opinion was therefore in error; our Supreme Court has made it clear that no objection at the time of introduction is required where a motion in limine has been made to specific evidence and denied. Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987), citing Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981). Furthermore, it is worth mentioning that, although no objection at the time of introduction was necessary, the appellant did in fact object to the testimony at the first opportunity.

¶3I would grant rehearing on the basis of this error of law, and I respectfully dissent.

¶4Mayfield and Rogers, JJ., join in this dissent.