STATE of Arkansas, Appellant,
v.
David MASSERY, Appellee.
No. CR 89-91.
Supreme Court of Arkansas.
June 11, 1990.HAYS, Justice, dissenting.
The trial court excluded the results of an Intoxilyzer Test because the officer, B.R. Keyes, did not have personal knowledge that the simulator he used to calibrate the Intoxilyzer was a brand of simulator approved by the Arkansas Department of Health in its Regulation 4.31. In so doing, I believe the trial court placed a greater burden on the state than either our statutes or case law require. The state is fully justified, as I see it, in appealing that ruling.
It was not disputed at trial that the Breathalyzer was approved and certified, rather, at issue was a Stephenson "simulator" used to test the Breathalyzer. Keyes testified that he knew it was a Stephenson simulator and that inspectors from the Department had approved that specific simulator on several prior occasions, most recently just before the test was administered to Massery. Since we have consistently held that substantial compliance with regulations of the State Health Department in DWI cases is sufficient, I submit the trial court erred and this court should so state. Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988); Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1985). In Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986), the Court of Appeals summarized the constituents of proof required in these cases:
In sum, § 75-1031.1(c) [Ark. Code Ann. § 5-65-206 (1987)] requires (1) the method of testing must be approved by the Board of Health, (2) the machine must have been certified in the three months preceding arrest, and (3) the operator must have been trained and certified. Neither a senior operator's certificate nor an installation certificate are mentioned in the statute. Simply put, § 75-1031.1 does not require proof of an installation certificate before test results may be admitted into evidence.
Throughout its history this court has shown that it is singularly disinclined to allow an appeal where the state seeks merely a declaration of error, a ruling which does not purport to change the outcome, since the defendant is constitutionally immune from further prosecution. In State v. Hand, 6 Ark. 169 (1845) and State v. Denton, 6 Ark. 259 (1845), this court refused to entertain appeals by the state because the defendants had been acquitted and, hence, "the questions sought to be raised are mere abstract questions without any cause legally existing upon which the decisions of this court could have effect." Similarly, in State v. Biscoe, 12 Ark. 683 (1852), we dismissed the state's appeal because the issue was "simply a dry abstract point of law."
In 1846 the legislature attempted to correct State v. Hand, supra, by statutory provisions appearing in Goulds Digest, Chap. 52, Sec. 245, which gave a right of appeal by the state. But in State v. Jones, 22 Ark. 331 (1860), the Supreme Court continued to adhere to the dogma that appeals by the state were merely attempts to authorize "abstract questions of law to be certified to the court for its opinion." Id. at 334.
In 1869 the legislature again attempted to facilitate appeals by the state,[1] this time expressly authorizing the Attorney General to determine when an appeal should be pursued by the state, an agency of government, *109 one might argue, better suited than this court to judge whether the prosecution of criminal cases would be adversely affected by a ruling of the trial bench. That effort met with no greater success. In State v. Cox, 29 Ark. 115 (1873), the state's appeal was dismissed as being procedurally flawed and in State v. Withrow, 47 Ark. 552 (1886) the Supreme Court affirmed the trial court in sustaining a demurrer to an indictment for obstructing a public road, finding the state's appeal too triffling"our time may be more profitably employed than by settling immaterial differences of opinion between prosecuting attorneys and circuit judges."
The trend continued with State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916), State v. Gray, 160 Ark. 580, 255 S.W. 304 (1923), and State v. Mills, 160 Ark. 194, 254 S.W. 468 (1923), where the appeals were dismissed as being simply factual disputes. Notably, Chief Justice McCullough and Justice Humphreys dissented in Gray, pointing out that the appeal involved a "clear-cut question of law," to which the Attorney General had properly sought an answer, "but the majority have announced the conclusion that the appeal should be dismissed for the reason that it is not of sufficient importance to warrant the appeal."
Today's decision, though consistent with the long tradition, employs a rationale never before resorted tothat because evidentiary rulings by trial courts involve discretion and because we do not reverse such rulings absent an abuse of discretion, we cannot say discretion was abused in this instance. Therefore, reasons the majority, the appeal is not cognizable under Rule 36.10(c). While the view that evidentiary rulings involve a measure of discretion is unquestionably sound, it has scant relevance here. We are not asked to reverse this case for a second trial, but merely to declare for the guidance of the bench and bar that a challenged ruling on evidence was correct or incorrect. Clearly there is something to be gained by our doing so, and nothing whatever to be lost, since the defendant is entirely beyond additional prosecution. That was the course taken in State v. Dulaney, 87 Ark. 17, 112 S.W. 158 (1908), one of the rare instances where this court has reached the merits of an appeal by the state. In Dulaney, the state proffered testimony of a witness that money paid to a defendant, a state representative, was intended to influence his vote on pending legislation. The trial court rejected the evidence because there was no testimony of an agreement as to a particular bill. The defendant was acquitted and the state appealed. This court declared the rejection of the testimony was error. Abuse of discretion did not concern the court in Dulaney, nor did it concern the Court of Appeals in State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989). Nor should it operate in this case to abort a simple ruling on the merits of the question raised.
GLAZE, J., joins in dissent.
NOTES
[1] See Criminal Code, § 329, from which A.R. Cr.P. Rule 36.10(c) is patterned.