Cite as 2014 Ark. App. 588
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-109
CHRISTOPHER DAVID EBEL Opinion Delivered October 29, 2014
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. CR12-631-2]
STATE OF ARKANSAS HONORABLE BRAD KARREN,
APPELLEE JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Appellant Christopher David Ebel appeals from a conviction for driving while
intoxicated, second offense. Appellant’s sole point on appeal is that the trial court erred in
denying his motion in limine to exclude the results of a breathalyzer test because the arresting
officer did not allow appellant to have an additional, independent blood test administered. We
affirm appellant’s conviction.
Arkansas Code Annotated section 5-65-204(e) (Repl. 2005) provides as follows:
(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 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.
Cite as 2014 Ark. App. 588
(3) The refusal or failure of a law enforcement officer to advise a person of the
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.
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. Kay v. State, 46 Ark. App. 82, 85, 877 S.W.2d 957, 959 (1994). The initial test result
may be admitted into evidence if there was substantial compliance with the statute. Reynolds
v. State, 96 Ark. App. 360, 361, 241 S.W.3d 765, 766 (2006). Furthermore, the officer must
provide only such assistance in obtaining an additional test as is reasonable under the
circumstances presented. Kay, 46 Ark. App. at 85, 877 S.W.2d at 959. Whether the assistance
provided was reasonable under the circumstances is ordinarily a fact question for the trial
court to decide. Id. It is for the trial court to weigh the evidence and resolve the credibility
of the witnesses. Id. We will not reverse the trial court’s ruling on the admission of evidence
absent an abuse of discretion and a showing of prejudice. Graham v. State, 2012 Ark. App.
90, at 7, 389 S.W.3d 33, 37; see also Mhoon v. State, 369 Ark. 134, 136, 251 S.W.3d 244,
246–47 (2007).
We turn to the facts relevant to appellant’s motion in limine. Appellant was arrested
at approximately 1:30 a.m. on December 2, 2011, when Officer Joe Pruitt of the Benton
County Sheriff’s Office saw appellant’s SUV cross the center line four times and decided to
pull him over. Officer Pruitt testified that appellant’s eyes were bloodshot and watery, that
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Cite as 2014 Ark. App. 588
he had a bottle of Listerine in his hand and smelled strongly of it, that he fell against the car
when he got out, and that he admitted to having drunk “three or four beers.” Officer Pruitt
also testified that appellant walked slowly and swayed. Finally, Officer Pruitt performed two
field-sobriety tests and then took appellant to the county sheriff’s office, where a breathalyzer
test was administered showing that appellant’s blood-alcohol content was .089 percent. The
test was administered at 2:09 a.m. Appellant requested a second test, stating that he had the
means to pay for the test, and Officer Pruitt transported him to Mercy Hospital in Rogers
for a test to be administered for $45. Appellant gave the attendant his debit card, which was
declined twice. He asked Officer Pruitt if he could call his parents in Bella Vista to bring
money to the hospital; Officer Pruitt denied his request.
Appellant filed a motion in limine to exclude the results of the breathalyzer test
pursuant to Ark. Code Ann. § 5-65-204(e) because Officer Pruitt refused to allow him to
call his parents to bring money for the second test. After a hearing, the court denied the
motion, finding that Officer Pruitt had provided appellant with assistance in obtaining the
second test that was reasonable under the circumstances by transporting him to the hospital
and finding that the test was not given was because appellant was unable to pay for it.
The statute required Officer Pruitt to advise appellant of his right to obtain a second
test—and appellant does not dispute that this occurred—and “to permit and assist” him in
obtaining it. The officer need provide only such assistance as is reasonable under the
circumstances. Kay, 46 Ark. App. at 85, 877 S.W.2d at 959. In this case, appellant requested
the second test and told Officer Pruitt that he had the means to pay for the test. Officer Pruitt
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took appellant to Mercy Hospital in Rogers, where appellant’s debit card was declined.
Appellant asked the hospital attendant to run the debit card again, which the attendant did,
and it was again declined. It was after 2:00 in the morning, appellant’s parents lived in another
town, and appellant did not mention needing additional funds for the test until his debit card
was declined. Officer Pruitt had no duty to allow appellant to call his parents to bring money.
Because we cannot say that the trial court clearly erred in finding that Officer Pruitt’s actions
constituted reasonable assistance under the circumstances of this case and in determining that
Officer Pruitt substantially complied with the statute, we hold that the trial court did not
abuse its discretion in denying appellant’s motion in limine.
Affirmed.
WALMSLEY and HARRISON, JJ., agree.
Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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