Arkansas Law

Legal Blood Alcohol Content Level: .08

Automatic Suspension of License for Failure of Blood Alcohol Test or Refusal to Submit to Test: Yes

Ignition Interlock Requirement upon Conviction: Yes

Felony Conviction for Repeat Offenses: Yes
 

5-65-101. Omnibus DWI Act — Application.

This act shall be known as the “Omnibus DWI Act”.
History. Acts 1983, No. 549, § 1; A.S.A. 1947, § 75-2501; 2007, No. 214, § 1.
Amendments. The 2007 amendment deleted former (b) and (c).
Meaning of “this act”. Acts 1983, No. 549, codified as §§ 5-65-101 — 5-65-105, 5-65-107 — 5-65-112, 5-65-115, 5-65-202 — 5-65-206, 12-6-101, 12-6-102.

Case Notes
Purpose.
Legislative Intent.

Purpose.
The legislative intent of the Omnibus DWI Act of 1983, as stated in subsection (c), was to enhance penalties by using convictions under the prior driving while under the influence act; thus, previous convictions for driving while under the influence of intoxicants under prior law may be used as prior offenses for enhancement purposes. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318(1984).
Legislative Intent.
The legislature has always considered DWI to be a traffic offense and only removed it from the list of traffic offenses under § 27-50-302 when DWI became the focus of an entire act within itself. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993).
Cited: Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984); Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Doty v. State, 285 Ark. 270, 686 S.W.2d 413 (1985); Sides v. State, 285 Ark. 323, 686 S.W.2d 434 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985); Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985); Gullett v. State, 18 Ark. App. 97,711 S.W.2d 836 (1986).


5-65-102. Definitions.
As used in this act:

(1) (A) “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through VI.

(B) The fact that any person charged with a violation of this act is or has been entitled to use that drug or controlled substance under the laws of this state does not constitute a defense against any charge of violating this act;

(2) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians;

(3) “Sworn report” means a signed and written statement of a certified law enforcement officer, under penalty of perjury, on a form provided by the Director of the Department of Finance and Administration; and

(4) “Victim impact statement” means a voluntary written or oral statement of a victim, or relative of a victim, who has sustained serious injury due to a violation of this act.
History. Acts 1983, No. 549, § 2; A.S.A. 1947, § 75-2502; Acts 1987, No. 765, § 1;
1997, No. 1325, § 1.

Publisher's Notes
. Schedules I through VI referred to in this section exist pursuant to the Uniform Controlled Substances Act, § 5-64-101 et seq. The schedules are partly codified and partly governed by administrative regulation. The Director of the Division of Health of the Department of Health and Human Services or his or her authorized agent revises and republishes the schedules annually. For a copy of the most recent rescheduling of controlled substances, contact the Division of Health of the Department of Health and Human Services.
Meaning of “this act”. See note to § 5-65-101.

Research References
U. Ark. Little Rock L.J.
Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 559.

Case Notes

Constitutionality.
Intoxicated.
—In General.
—Evidence.
—Intoxicant.

Constitutionality.

The term “intoxicant” as used in subdivision (1) of this section is not unconstitutionally vague. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).
Intoxicated.
If the refusal to be tested is admissible evidence on the issue of intoxication, as defined in subsection (2) of this section, and may indicate the defendant's fear of the results of the test and the consciousness of guilt, then a defendant's attempts to prevent accurate testing surely may be
considered as similar proof of guilt; the court's decision does not turn on whether an appellant's efforts to interfere with testing were or could have been successful and even futile efforts to interfere with blood-alcohol testing may be considered as proof of guilt. Blair v. State, 103 Ark.
App. 322, 288 S.W.3d 713 (2008).
Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of bloodalcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under § 5-65-206(a)(2), a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication; based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated
condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in subdivision (2) of this section, and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).
—In General.
Due process requires only fair warning, not actual notice; the definition of “intoxicated” in this section fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a motor vehicle after consuming a sufficient quantity of alcohol to alter his reactions, motor
skills and judgment to the extent that his driving constitutes a substantial danger to himself or others. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).
A law is held to be vague when it leaves the police or the factfinder free to decide, without a fixed standard, what is prohibited; the definition of intoxicated, set out in this section, is a sufficient standard for police enforcement and for ascertainment of guilt. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).
The driver's skills under normal conditions are immaterial; it is driving with those skills impaired by intoxication to the extent that it causes the danger outlined in this section that brings the driver within the proscribed activity. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985).
—Evidence.
Evidence held sufficient to find that the defendant was intoxicated. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985); Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation, and proof by chemical test that the motorist's blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). Evidence of DWI, fifth offense, held sufficient where defendant refused to submit to a breathalyzer test, failed field sobriety tests, and the officers testified that they smelled intoxicants on defendant's person. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Where the evidence showed that defendant committed several traffic offenses when leaving a liquor store parking lot, refused to stop until he reached his residence, had red and bloodshot eyes, smelled like alcohol, and was unable to stand, there was sufficient evidence to support a conviction for driving while intoxicated; moreover, evidence that defendant refused a breathalyzer test was admissible to show intoxication based on a consciousness of guilt. Hassan v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 528 (June 29, 2005).
—Intoxicant.
The addition of the term “any intoxicant” to “alcohol, a controlled substance, or a combination thereof” has not made the definition vague; a person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in present subdivision (2) of this
section constitutes use of an “intoxicant” and that being in control of a motor vehicle shortly thereafter may violate the law. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994). The General Assembly has recognized in § 5-60-116 that toluene is an intoxicant. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).
Cited: Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989); Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990); Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (Ark. 2004).
 

5-65-103. Unlawful acts.

(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.

(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person's breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
History. Acts 1983, No. 549, § 3; A.S.A. 1947, § 75-2503; Acts 2001, No. 561, § 2.

Amendments. The 2001 amendment substituted “the alcohol concentration … § 5-65-204” for “there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood as determined by a chemical test of the person's blood, urine, breath, or other bodily substance” in (b).
Meaning of “this act”. See note to § 5-65-101.

Research References

ALR.
Vertical gaze nystagmus test: Use in impaired driving prosecution. 117 A.L.R.5th 491.
Vertical gaze nystagmus test: Use in impaired driving prosecution. 117 A.L.R.5th 491.
Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving while under influence of alcohol or drugs. 17 A.L.R.6th 757.
U. Ark. Little Rock L.J.
Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.
Seventeenth Annual Survey of Arkansas Law — Constitutional Law, 17 U. Ark. Little Rock L.J.450.

Case Notes
Constitutionality.
In General.
Construction.
All-terrain Vehicles.
Burden of Proof.
Charging Document, Citation, Etc.
Competency for Other Purposes.
Double Jeopardy.
Elements of Offense.
Evidence.
—In General.
—Confessions.
—Intoxicated.
—Police.
Horizontal Gaze Nystagmus Test.
Instructions.
Intoxicated.
Legislative Intent.
Lesser-Included Offenses.
Mental State.
Operation or Control of Vehicle.
Place of Operation.
Portable Breath Test.
Prohibited Conduct.
Right to Counsel.
Separate Offenses.

Constitutionality.
The Omnibus DWI Act of 1983 is not unconstitutional on its face or as applied, in that subsection (b) establishes a conclusive presumption of guilt. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). Subsection (b) is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984);
Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). Subsection (b) meets due process requirements. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318
(1984). The blood alcohol measurement standard in subsection (b) bears a reasonable relationship to the legitimate state interest in protecting the safety of its citizens. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The state has a rational basis in protecting public safety, and to that end, the General Assembly has determined that a driver with a blood alcohol content of .10% or more constitutes a serious and immediate threat to the safety of all citizens; the Omnibus DWI Act of 1983 is simply a reasonable means of protecting the public safety. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318
(1984). The Omnibus DWI Act is not unconstitutional on the ground that a machine rather than a jury of peers is the basis for the conviction since it is up to the jury to determine whether the defendant was operating a motor vehicle and whether his blood alcohol content was in fact greater than the
statutorily set standard. Girdner v. City of Kensett, 285 Ark. 70, 684 S.W.2d 808 (1985). Subsection (a) is not unconstitutionally vague. Long v. State, 284 Ark. 21, 680 S.W.2d 686(1984); Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985). Subsection (b) which makes it a violation per se to drive with a blood alcohol content of .10% or more is not unconstitutionally vague. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358
(1985).
In General.
City attorney of a first-class city had authority to prosecute a state misdemeanor violation because he was acting as a de facto official. Chronister v. State, 55 Ark. App. 93, 931 S.W.2d 444 (1996).
Construction.
Under § 5-65-206(a)(2), if a person's blood alcohol content is lower than that required by subsection (b) of this section, other competent evidence may be used to show intoxication under subsection (a). State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996). Although defendant was charged with DWI second offense but convicted instead of DWI first offense, the defendant was not acquitted of the “charge” of DWI second offense under § 5-65-104; once the municipal court convicted defendant of DWI first offense, he simply had two separate convictions of violating this section, since DWI first offense is just as much a violation of this section as is DWI second offense. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998). Critical point for counting driving while intoxicated (DWI) offenses is at the sentencing phase of the DWI case, not the date that the crime is committed, and § 5-65-111(b)(3) plainly contemplates determining total DWI offenses within five years of the first offense and, to the extent Ark. Model Jury Instruction Crim. § 2d 9201.4 is in conflict with the method of counting prior offenses, § 5-65-111(b) prevails. State v. Sola, 354 Ark. 76, 118 S.W.3d 95 (2003). Subsection (b), as amended in 2001, sets the legal limit for blood alcohol concentration and must be read in conjunction with § 5-65-204(a)(1), which defines the alcohol concentration computation; hence, where defendant stipulated that his blood alcohol concentration as revealed in breathalyzer test results was 0.109, his conviction for per se violation of subsection (b) was affirmed on appeal. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004).
All-terrain Vehicles.
An all-terrain vehicle meets the definition of a motor vehicle as set out in § 27-14-207, since allterrain vehicles are self-propelled and do not require rails; the term motor vehicle, as used in this section, also includes all-terrain vehicles. Fitch v. State, 313 Ark. 122, 853 S.W.2d 874 (1993).
Burden of Proof.
Subsection (b) does not lessen the state's burden of proof, and each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty of committing the prohibited act of driving with .10% or more alcoholic content in the blood. Lovell v. State, 283 Ark.425, 678 S.W.2d 318 (1984). Subsection (b) does not deprive the accused of the presumption of innocence by shifting the burden of proof to the defendant and creating an irrebuttable presumption of guilt, for each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty
of committing the prohibited act of driving with .10% or more alcoholic content in the blood. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985). The state must prove not only that defendant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated. Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). To convict defendant of driving while intoxicated the state has to prove that defendant was driving or in actual physical control of a motor vehicle, that defendant's driving skills were sufficiently impaired to create a substantial danger to himself and others, and that the impaired driving skills were the result of the ingestion of a controlled substance. Roach v. State, 30 Ark. App. 119, 783
S.W.2d 376 (1990). To convict defendant of driving while intoxicated the state has to prove that defendant was driving or in actual physical control of a motor vehicle, that defendant's driving skills were sufficiently impaired to create a substantial danger to himself and others, and that the impaired driving skills were the result of the ingestion of a controlled substance. Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990). This section does not require that law enforcement officers actually witness an intoxicated person driving or exercising control of a vehicle; it is well-settled that the state may prove by
circumstantial evidence whether a person operated or was in actual physical control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). In a driving while intoxicated case, the state is not required to prove that the defendant confessed or prove that she possessed an intent to drive drunk; contrary to defendant's claim, the state was not required to prove that a law enforcement officer actually witnessed the intoxicated person driving or exercising control over the vehicle, as the state could make that showing by circumstantial evidence. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).
Charging Document, Citation, Etc.
A charging document, which reflected that the defendant was “charged with the offense of Driving While Intoxicated (DWI) one” was sufficient for a conviction under either subsection (a) or (b), even though the evidentiary requirements of the subsections are different. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). Citations which charged defendant with “Driving Under the Influence of Intoxicants” were not void for lack of specificity in that they did not indicate under which subsection of this section of the Omnibus DWI Act the defendant was charged. Johnston v. Ft. Smith, 15 Ark. App. 102, 690
S.W.2d 358 (1985). Where the actual charge was “D.W.I. 5-65-103,” and the citation did not specify either subsection of this section, since subsections (a) and (b) are, legally, two different ways to prove a single violation, it does not matter if defendant is charged under subsection (b), but convicted under
subsection (a). Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), overruled, Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993), overruled in part, Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993). A charge of “DWI one” is sufficient for a conviction under either subsection (a) or (b), even though the evidentiary requirements of the subsections are different. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996). Municipal court erred and prejudiced defendant charged with driving while intoxicated (DWI) when it changed the charge to driving under the influence (DUI) on its own motion, because DUI
is not a lesser-included offense of DWI and altering the charge violated § 5-65-107; and the circuit court erred in trying and convicting defendant of DUI following his appeal from the municipal court, a judgment it was not authorized to render under § 16-19-1105. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). Defendant's right to a speedy trial under Ark. R. Crim. P. 30.1 was violated when his trial for driving while intoxicated in violation of § 5-65-103 commenced on the 600th day following his arrest. Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003).
Competency for Other Purposes.
Fact that defendant's blood alcohol level exceeded .10% at time of trial did not require conclusion under this section that he was too intoxicated to stand trial; this section provides that it is unlawful for any person to operate a motor vehicle if his blood alcohol level is .10 percent or more, but does not declare or imply that a person in such condition is incompetent for any other purposes. Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991).
Double Jeopardy.
Driving while intoxicated is an essential component of the crime of negligent homicide, since it is necessary to prove that defendant was driving while intoxicated in order to prove that he had committed negligent homicide; consequently, a defendant cannot be convicted of both offenses. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993).
Elements of Offense.
Trial court properly provided copies of defendant's prior DWI convictions to the jury for their examination because the fact of prior DWI convictions was an element of the crime of DWI, fourth offense, to be determined by the jury; although the trial court had to determine the admissibility of evidence of the prior convictions, it was up to the jury to determine that the evidence established that element of the offense. Fields v. State, 81 Ark. App. 351, 101 S.W.3d 849 (2003).
Evidence.
Where defendant crossed the center line twice, the state trooper noticed that his breath smelled of alcohol, and he did not pass field-sobriety tests; within two hours of the traffic stop, defendant's breath-test results were more than 0.08. These facts alone were sufficient to support his conviction of driving while intoxicated pursuant to subsection (a) of this section; defendant's claim that his alcohol level would have still been rising at the time of the offense and could have been peaking at the time of the tests was unsupported by the evidence. Hayden v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008). If the refusal to be tested is admissible evidence on the issue of intoxication, as defined in § 5-65-102(2), and may indicate the defendant's fear of the results of the test and the consciousness of guilt, then a defendant's attempts to prevent accurate testing surely may be considered as similar
proof of guilt; the court's decision does not turn on whether an appellant's efforts to interfere with testing were or could have been successful and even futile efforts to interfere with blood-alcohol testing may be considered as proof of guilt. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008). Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of bloodalcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under § 5-65-206(a)(2), a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication; based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in § 5-65-102(2), and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008). During the penalty phase of defendant's trial for driving while intoxicated in violation of this
section and refusal to submit to a chemical test in violation of § 5-65-205, the trial court did not err by admitting evidence of his prior convictions for refusal to submit to a chemical test; the evidence was relevant to his sentencing as either character evidence or aggravating circumstances. Williams v. State, 2009 Ark. App. 554, — S.W.3d — (2009).
—In General.
Evidence to show intoxication held admissible. Canard v. State, 174 Ark. 918, 298 S.W. 24 (1927) (decision under prior law); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985); Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). Evidence held sufficient to support conviction. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985); Broyles v. State, 285 Ark. 457, 688 S.W.2d 290 (1985); Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985); Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987); Deshazier v. State, 26 Ark. App. 193, 761 S.W.2d 952 (1988); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992); Wilson v. State, 46 Ark. App. 1, 875 S.W.2d 510 (1994); Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). Proof of the blood alcohol content is not necessary for a conviction under subsection (a), driving while intoxicated; however, such proof is admissible as evidence tending to prove intoxication. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). The erroneous admission of breathalyzer test results indicating that defendant's blood-alcohol level was 0.20% was prejudicial where, even though the trial judge said that he was not convicting defendant under subsection (b) but that the conviction was based instead upon subsection (a), the judge did not say that he did not consider the test results. Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985). The trial court did not err by admitting into evidence a breathalyzer log showing all tests
performed on the machine for a period of five days, even though the defendant's blood alcohol content was the highest one recorded on it, where the log was admissible for the purpose of showing calibration of the machine and the defendant's test result, and the judge offered to admonish the jury to disregard the other test results or delete them, but the defendant rejected this offer. Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986). Subsection (b) of this section states that it is unlawful for a person to operate a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood. However, § 5-65-204(a) states that percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989). Officer's testimony was insufficient to establish that gaze nystagmus testing was reliable and generally accepted in the scientific community. Middleton v. State, 29 Ark. App. 83, 780 S.W.2d
581 (1989). Evidence held insufficient to support conviction. Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990); Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992). Where defendant was involved in a one-vehicle accident, had a strong odor of alcohol about his person, his speech was slurred, and the deputy sheriff who questioned defendant testified that shortly after the accident defendant appeared to be “very drunk, very intoxicated,” there was
substantial evidence to sustain defendant's conviction without considering the result of the blood test. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence of DWI, second offense, held insufficient where the date of the prior offense was not on the docket sheet introduced into evidence. Wilson v. State, 46 Ark. App. 1, 875 S.W.2d 510 (1994). Prosecutor's remark, “The reason we have this law is so people won't be out there killing our kids” fell well short of any error or prejudice requiring reversal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation, and proof by chemical test that the motorist's blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). Although the police officers' testimony regarding their belief that defendant was intoxicated was described by the trial court as “subjective” evidence, it was the province of the jury to determine
the weight and credibility of this evidence. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996). Where defendant was involved in a one-car accident, it was reasonable to infer that the defendant's impaired response could have been caused by his injuries, and, in light of this inference, the odor of alcohol was insufficient to support the conviction. Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998). The State is not precluded as a matter of law from producing evidence of intoxication by ingestion of a controlled substance if the information did not specifically allege this method of intoxication.
State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996). A DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient
other evidence of intoxication. Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999). Trial court abused its discretion by excluding defendant's exculpatory testimony about the results of a portable breathalyzer test administered by an officer at the scene of the arrest that allegedly showed defendant's blood-alcohol content was below the legal driving limit. Elser v. State, 79 Ark. App. 440, 89 S.W.3d 353 (2002), rev'd, 353 Ark. 143, 114 S.W.3d 168 (2003) (decision under prior law). Defendant's DWI conviction was improper where neither blood test resulted in blood alcohol levels in excess of the then legal limit, there was no testimony concerning speech pattern, appearance of defendant's eyes, any admission of his, or anything else that would support a finding of intoxication; in light of the fact that neither blood test resulted in blood alcohol levels in excess of the then legal limit, the court could not hold that defendant's case was one in which blood alcohol content and a mere allegation of an odor of intoxication was sufficient proof for DWI. Porter v. State, 82 Ark. App. 589, 120 S.W.3d 178 (2003), rev'd, 356 Ark. 17, 145 S.W.3d 376 (Ark. 2004). State failed to present evidence showing that defendant had a blood-alcohol content of 0.10 percent or greater such that there was not substantial evidence to convict defendant under
subsection (b); however, there was substantial evidence to convict him under subsection (a) as he was intoxicated and operated a vehicle while intoxicated. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (Ark. 2004).
—Confessions.
Pre-arrest statement by defendant charged with DWI that he was the driver of the vehicle was not a “confession” as that term is used in § 16-89-111(d), because defendant's statement contained no admission that defendant was intoxicated or that his blood alcohol level was in excess of the legal limit at the time of the accident; defendant's statement that he was the operator of the vehicle merely constituted an admission of one element of the offense of DWI, rather than a confession of the crime. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995).
—Intoxicated.
Any error by the circuit court in denying defendant's motion in limine to exclude evidence or his refusal to submit to breath testing was harmless as the evidence of his guilt was overwhelming; defendant was passed out at the steering wheel, he could not pass field sobriety tests, and he admitted to drinking alcohol earlier in the evening. Etheredge v. State, 89 Ark. App. 288, 202 S.W.3d 543 (2005). Where evidence showed that defendant committed several traffic offenses when leaving a liquor store parking lot, refused to stop until he reached his residence, had red and bloodshot eyes, smelled like alcohol, and was unable to stand, there was sufficient evidence to support a conviction for driving while intoxicated; moreover, evidence that defendant refused a breathalyzer test was admissible to show intoxication based on a consciousness of guilt. Hassan v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 528 (June 29, 2005). Defendant's convictions were supported by substantial evidence where it was shown that (1) shortly after the incident, defendant had a blood-alcohol level of .23 percent, (2) defendant was driving the car that hit two women and narrowly missed a third, (3) just before the impact, defendant was witnessed to speed up and actually swerve the vehicle toward the women's path, and (4) defendant drove away after the impact. Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006).
—Police.
This section does not require law enforcement officers to actually witness an intoxicated person driving or exercising control of a vehicle. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Trial court erred in admitting evidence that the defendant failed a portable breath test and in admitting the result of a breathalyzer test taken later at a police station where the statutory requirements of §§ 5-65-206 and 5-65-204(d) regarding the administration of blood alcohol tests were not followed. Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003).
Horizontal Gaze Nystagmus Test.
Using the horizontal gaze nystagmus test to identify a precise blood alcohol content under subsection (b) is vastly different from testing to indicate some alcohol in the system for purposes of intoxication under subsection (a). Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993). Where the horizontal gaze nystagmus test administered by police officer was not used to quantify a precise percentage of blood alcohol content but rather to show some indication of alcohol consumption in conjunction with other field sobriety tests, the testimony regarding the results of the test was properly admitted. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).
Instructions.
Under §§ 16-89-126(c) and 5-4-103, the defendant was entitled to have a jury fix his sentence for his conviction of driving while intoxicated, and his proffered jury instruction to this effect should have been given. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). Defendant was not prejudiced by trial court's refusal to instruct the jury to return separate verdicts for subsections (a) and (b) since the penalty would be the same whether the act is violated by
conduct described by (a) or (b); the two conditions are simply two different ways of proving a single violation. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).
Intoxicated.
The addition of the term “any intoxicant” to “alcohol, a controlled substance, or a combination thereof” has not made the definition vague; a person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in present § 5-65-102(2) constitutes use of an “intoxicant” and that being in control of a motor vehicle shortly thereafter may violate the law. Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).
Evidence held sufficient to establish that the defendant was intoxicated where (1) 2 police officers smelled alcohol on the defendant's breath, (2) the defendant admitted that he consumed alcohol, and (3) although one officer could not recall the specifics of the field sobriety tests he conducted,
he indicated that he administered 3 such tests and that the defendant failed all 3. Felgate v. State, 63 Ark. App. 76, 974 S.W.2d 479 (1998). Evidence of intoxication held sufficient where the blood alcohol level shown by a breathalyzer test was .104, notwithstanding that the officer who administered the breathalyzer test testified that the breathalyzer machine had a plus or minus factor of .01 for the external check, and not withstanding the contention that the defendant's blood alcohol level could thus have been as low as .094, since the officer also testified that the .01 factor had nothing to do with a personal sample. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). Evidence of DWI, fifth offense, held sufficient where defendant refused to submit to a breathalyzer test, failed field sobriety tests, and the officers testified that they smelled intoxicants on defendant's person. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Main purpose of § 5-65-204 is to clarify who can withdraw blood, specifically medical personnel rather than law enforcement, and their liability, and because defendant did not specifically contest the actual method used for the blood draw or the competence of the technologist, and because he failed to show any prejudicial error, any failure to follow the statutory limitations of § 5-65-204(d)(1) should not have resulted in the exclusion of the test results; even without the blood test results, there was evidence from which a jury could have found that defendant was intoxicated for purposes of this section, including that defendant drove into a ditch, was unsteady on his feet, had bloodshot and glassy eyes, smelled of alcohol, and admitted to drinking the night before the accident. Irving v. State, — Ark. App. —, — S.W.3d —, 2007 Ark. App. LEXIS 912 (Dec. 19,
2007).
Legislative Intent.
It is evident from the history of § 27-49-102(2) that the legislature intended that the offense of DWI not be restricted to the highways of this state; the legislature has consistently intended that DWI constitutes a criminal offense whether it occurs on highways or on private property. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993).
Lesser-Included Offenses.
Violation of the implied consent law is not a lesser-included offense of driving while intoxicated, and the offense of driving while intoxicated is not a lesser-included offense of violation of the implied consent law. Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996). Driving under the influence (DUI) is not a lesser-included offense of driving while intoxicated, in that DUI requires an additional element of proof of the defendant's age and a different level of
intoxication. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Mental State.
The Omnibus Driving While Intoxicated Act of 1983 is valid even though it does not require a culpable mental state. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).
Operation or Control of Vehicle.
Defendant held to be in control of vehicle. Walker v. State, 241 Ark. 396, 408 S.W.2d 474 (1966) (decision under prior law); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985); Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). The defendant held not to be in actual control of his vehicle. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984) (decision under prior law). There are three ways to prove operation of a motor vehicle: (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992). In a prosecution for driving while intoxicated, actual control of a vehicle by the defendant may be proved by circumstantial evidence; the officer need not see the driver operating the car in order to have reasonable cause to believe he was doing so. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). Where there was evidence that immediately after the impact, the defendant was in the driver's seat behind the steering wheel, that evidence alone constituted substantial evidence to support the finding that he was driving seconds before the time of impact. Tumbs v. State, 290 Ark. 214, 718 S.W.2d 105 (Ark. 1986). Investigatory stop of vehicle held justified. Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987). Where defendant conceded that he was intoxicated, and the officer testified that defendant was found in the driver's position with the engine actually running, the jury could properly have concluded that he was in actual physical control of a motor vehicle. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). It was error for the court to instruct the jury that it must find against defendant on the issue of control if it found that circumstances existed from which an inference of this element could be drawn. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). To be guilty of DWI, it does not have to be shown that a defendant was driving the vehicle or driving the vehicle in a hazardous or negligent manner; in fact, it only requires a showing that the defendant was in actual physical control of the vehicle while intoxicated. Beasley v. State, 47 Ark. App. 92, 885 S.W.2d 906 (1994). Where defendant's hands were on the steering wheel of a parked vehicle with the motor running and the lights on, defendant was in actual physical control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). Evidence held sufficient to establish that defendant was in actual physical control of a motor vehicle where defendant was in the driver's side of a parked car with its engine running; the evidence was sufficient to permit the fact-finder to infer that the defendant had driven the car shortly before her arrest. Beckner v. State, 49 Ark. App. 56, 896 S.W.2d 445 (1995). Evidence that defendant either operated or was in actual physical control of a vehicle held sufficient where defendant was discovered by police walking away from a one-vehicle accident involving his own truck for which he possessed the keys in his pocket, and there was testimony that defendant had been driving his truck not long before his encounter with the police. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Defendant was in actual physical control of a vehicle where an officer found the defendant on the driver's side of the running vehicle and slumped over in the seat apparently unconscious,
notwithstanding the defendant's assertion that he had a designated driver and went out to warm up the vehicle because it was cold. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998). A defendant was not in actual physical control of a vehicle where an officer found the defendant asleep, intoxicated, and sitting behind the steering wheel, with the driver's side window rolled down, the motor and the car lights off, and the keys to the vehicle on the dashboard. Stephenson v. City of Fort Smith, 71 Ark. App. 190, 36 S.W.3d 754 (2000). Where evidence showed that, at the time officers encountered defendant in his vehicle, defendant had been drinking, his foot was on the brake pedal, but the keys were not in the ignition as defendant turned off the engine by use of the remote-start button, the state failed to prove that defendant was in “actual physical control” of the vehicle and his conviction for driving while intoxicated was reversed. Rogers v. State, 94 Ark. App. 47, 224 S.W.3d 564 (2006). Court rejected defendant's claim that the trial court erred in denying defendant's motion for a directed verdict in her driving while intoxicated case; direct eyewitness testimony and circumstantial evidence proved that defendant was the driver, and given that an officer saw the brake light flash on defendant's car before she exited from the driver's side with the keys in her hand, this constituted substantial evidence to establish that defendant was the driver. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).
Place of Operation.
One may be convicted of DWI while operating a vehicle on a private roadway. Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993). This section contains no location or geographic element, and one cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway. Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993). The offense of DWI can be committed on the parking lot of a private club. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993).
Portable Breath Test.
Evidence of the results of a portable breath test are not admissible as substantive evidence absent proof of their reliability; therefore, the trial court did not err in refusing to allow defendant to admit the results into evidence in a driving while intoxicated case. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). Although defendant was acquitted of refusal to consent to a breath test in the municipal court, where he appealed his conviction for driving while intoxicated (DWI) to the circuit court, the refusal was admissible as evidence showing knowledge or consciousness of guilt. Etheredge v. State, 89 Ark. App. 288, 202 S.W.3d 543 (2005).
Prohibited Conduct.
Under subsection (b), intoxication is not an element of the offense; driving with a blood alcohol content of .10% or more is the prohibited act; stated differently, it is a violation per se to drive with a blood alcohol content of .10% or more. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).
Right to Counsel.
Because trial court had discretion in sentencing defendant to jail for first offense DWI, he was not accused or convicted of a “serious crime,” and his right to counsel did not attach at the trial level. Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990). First offense DWI is not a serious crime by which failure to perfect an appeal would permit a claim of ineffective assistance of counsel to prevail, and failure of defendant's counsel to perfect his appeal is not a denial of his right to effective assistance of counsel. Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990).
Separate Offenses.
The two subsections of this section do not state two separate offenses that require different elements of proof; the penalty is the same whether the section is violated by conduct proscribed by either subsection, and thus the two conditions are simply two different ways of proving a single violation. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985). If the state proceeded against defendant first on driving while intoxicated (DWI) and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide; however, the same result does not apply when the two offenses are tried simultaneously. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993). Defendant's manner of driving, which included speeding and driving left of center, violated city's hazardous driving ordinance, while defendant's act of driving his vehicle while being intoxicated
violated this section; it is clear that these offenses are two separate offenses for the purpose of double jeopardy analysis since each statutory provision requires proof of a fact which the other does not. Beasley v. State, 47 Ark. App. 92, 885 S.W.2d 906 (1994).
Cited: State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984); Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985); Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985); Dacus v. State, 16 Ark. App. 222, 699 S.W.2d 417 (1985); Hoover v. Thompson, 787 F.2d 449 (8th Cir.1986); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987); Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988); Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990); Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991); Smith v. State, 55 Ark. App. 97, 931 S.W.2d 792 (1996); Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996); Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (1996); Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (1996); Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); State v. Aud, 351 Ark. 531, 95 S.W.3d 786 (2003).
 

5-65-104. Seizure, suspension, and revocation of license — Temporary permits
— Ignition interlock restricted license.

(a) (1) At the time of arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood, as provided in § 5-65-103, the arrested person shall immediately surrender his or her license, permit, or other evidence of driving privilege to the arresting law enforcement officer as provided in § 5-65-402.

(2) The Office of Driver Services or its designated official shall suspend or revoke the driving privilege of an arrested person or shall suspend any nonresident driving privilege of an arrested person, as provided in § 5-65-402. The suspension or revocation shall be based on the number of previous offenses as follows:

(A) Suspension for:

(i) (a) Six (6) months for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol
concentration of at least eight hundredths (0.08) by weight of alcohol in the person's blood or breath, § 5-65-103.

(b) If the Office of Driver Services allows the issuance of an ignition interlock restricted license under § 5-65-118, the ignition interlock restricted license shall be available immediately.

(c) The restricted driving permit under § 5-65-120 is not allowed for a suspension under this subdivision (a)(2)(A)(i); and

(ii) (a) Suspension for six (6) months for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated by the
ingestion of or by the use of a controlled substance.

(b) The ignition interlock restricted license provision of § 5-65-118 does not apply to a suspension under subdivision (a)(2)(A)(ii)(a) of this section;

(B) (i) Suspension for twenty-four (24) months for a second offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.

(ii) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the suspension period for which no restricted license is available is a minimum of forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations:

(a) To and from his or her employment;
(b) To and from an educational institution for the purpose of attending class at the educational institution;
(c) To and from an alcohol safety education and treatment course for drunk drivers; or
(d) To and from an ignition interlock service.

(iii) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivisions (a)(2)(B)(i) and (ii) of this
section if the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance;

(C) (i) Suspension for thirty (30) months for the third offense of operating or being in actual physical control of a motor vehicle while intoxicated or while
there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.

(ii) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the suspension period for which no restricted license is available is a minimum of forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations:

(a) To and from his or her employment;
(b) To and from an educational institution for the purpose of attending class at the education institution;
(c) To and from an alcohol safety education and treatment course for drunk drivers; or
(d) To and from an ignition interlock service.

(iii) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivisions (a)(2)(C)(i) and (ii) if the person
is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance; and

(D) Revocation for four (4) years, during which no restricted permits may be issued, for the fourth or subsequent offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more by weight of alcohol in the person's blood or breath, § 5-65-103, within five (5) years of the first offense.

(3) If a person is a resident who is convicted of driving without a license or permit to operate a motor vehicle and the underlying basis for the suspension, revocation, or restriction of the license was for a violation of § 5-65-103, in addition to any other penalties provided for under law, the office may restrict the offender to only an ignition interlock restricted license for a period of one (1) year prior to the reinstatement or reissuance of a license or permit after the person would otherwise be eligible for reinstatement or reissuance of the person's license.

(4) In order to determine the number of previous offenses to consider when suspending or revoking the arrested person's driving privileges, the office shall consider as a previous offense any of the following that occurred within the five (5) years immediately before the current offense:

(A) Any conviction for an offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood, including a violation of § 5-10-105(a)(1)(A) or (B), that occurred:

(i) In Arkansas; or

(ii) In another state;

(B) Any suspension or revocation of driving privileges for an arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood under § 5-65-103 when the person was not subsequently acquitted of the criminal charges; or

(C) Any conviction under § 5-76-102 for an offense of operating a motorboat on the waters of this state while intoxicated or while there was an alcohol
concentration in the person's breath or blood of eight hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204 or refusing to submit to a chemical test under § 5-76-104 occurring on or after July 31, 2007, when the person was not subsequently acquitted of the criminal charges.

(b) (1) (A) Any person whose license is suspended or revoked pursuant to this section is required to complete an alcohol education program or an alcohol treatment program as approved by the Office of Alcohol and Drug Abuse Prevention unless the charges are dismissed or the person is acquitted of the charges upon which the suspension or revocation is based.

(B) If during the period of suspension or revocation under subdivision

(b)(1)(A) of this section the person commits an additional violation of § 5-65-103, he or she is also required to complete an approved alcohol education program or alcohol treatment program for each additional violation, unless:

(i) The additional charges are dismissed; or

(ii) He or she is acquitted of the additional charges.

(2) A person whose license is suspended or revoked pursuant to this section shall furnish proof of attendance at and completion of the alcohol education program or the alcohol treatment program required under subdivision (b)(1) of this section before reinstatement of his or her suspended or revoked driver's license or shall furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.

(3) Even if a person has filed a de novo petition for review pursuant to former subsection (c) of this section, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.
History. Acts 1983, No. 549, § 13; 1985, No. 113, § 1; 1985, No. 1064, § 1; A.S.A.1947, § 75-2511; Acts 1989, No. 368, § 1; 1989, No. 621, § 1; 1993, No. 736, § 1; 1995, No. 802, § 1; 1997, No. 830, § 1; 1997, No. 1325, § 2; 1999, No. 1077, § 9; 1999, No.1468, § 1; 1999, No. 1508, § 7; 2001, No. 561, §§ 3-5; No. 1501, § 1; 2003, No. 541, § 1; 2003, No. 1036, § 1; 2003, No. 1462, § 1; 2003, No. 1779, § 1; 2005, No. 1234, § 3; 2005, No. 1768, § 1; 2007, No. 712, § 1; 2007, No. 827, § 75; 2007, No. 1196, § 1; 2009, No. 359, §§ 1—3; 2009, No. 650, § 2; 2009, No. 922, § 1; 2009, No. 1293, § 1.

A.C.R.C. Notes. Acts 1995, No. 802, § 5, provided, in part: “(a) Sections 1, 3, and 4 of this act shall be effective for all arrests or offenses occurring on or
after July 1, 1996.” Acts 2007, No. 827, § 75 provided: “Acts 1999, No. 1077, § 9, is repealed due to a conflict between that act and Acts 1999, No.
1468, § 1, and Acts 1999, No. 1508, § 7, in amending § 5-65-104, and which conflict under § 1-2-207 is resolved in favor of Acts 1999, Nos. 1468 and 1508.”
Publisher's Notes. Acts 1995, No. 802, § 5(a), is also codified, in part, as §§ 5-65-120(c) and 5-65-205(c).

Amendments. The 2001 amendment by No. 561 rewrote (a)(1), (a)(4), (a)(8), and (a)(9) and made minor stylistic changes.
The 2001 amendment by No. 1501 rewrote this section.
The 2003 amendment by No. 541 added (a)(9)(C) and made related changes.
The 2003 amendment by No. 1036 rewrote this section.
The 2003 amendment by No. 1462 redesignated former (h)(1) as present (b)(1) and deleted the former last three sentences.
The 2003 amendment by No. 1779 substituted “the interlock restrict license shall be available immediately” for “the suspension period for which no restricted license shall be available shall be a minimum of thirty (30) days” in present (a)(2)(A)(iii).
The 2005 amendment by No. 1234 substituted “if the office” for “if the court orders” in (a)(2)(A)(iii), (a)(2)(B) and (a)(2)(C); and, in (a)(3), substituted “the office” for “the court may order” and “may restrict the offender to” for “that the Office of Driver Services may issue.”
The 2005 amendment by No. 1768 redesignated former (b)(1) as present (b)(1)(A); in present (b)(1)(A), deleted “as prescribed and approved by the Highway Safety Program” following “education program” and substituted “Human Services” for “Health”; added (b)(1)(B); and inserted “or programs required under subdivision (b)(1) of this section” in (b)(2).
The 2007 amendment by No. 712 added “any of the following that occurred within the five (5) years immediately before the current offense” in (a)(4); substituted “that occurred” for “under § 5-65-103 or refusing to submit to a chemical test under § 5-65-202 that occurred prior to July 1, 1996” in (a)(4)(A); added (a)(4)(A)(i) and (a)(4)(A)(ii); in (a)(4)(B), substituted “was” for “is” and deleted “or refusing to submit to a chemical test under § 5-65-202 occurring on or after July 1, 1996”; and made related changes.
The 2007 amendment by No. 1196 added (a)(4)(C).
The 2009 amendment by No. 359, in (a)(2), inserted (a)(2)(A)(ii)(b), redesignated the remainder of (a)(2)(A)(ii) accordingly, added (a)(2)(B)(iii) and (a)(2)(C)(iii), and made related changes.
The 2009 amendment by No. 650 inserted “including a violation of § 5-10-105(a)(1)(A) or (B)” in (a)(4)(A).
The 2009 amendment by No. 922, in (a)(2)(B)(ii), substituted “forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations” for “one (1) year” and inserted (a)(2)(B)(ii)(a) through (a)(2)(B)(ii)(d); in (a)(2)(C)(ii), substituted “forty-five (45) days, followed by restricted driving privileges to allow driving in any and all of the following situations” for “one (1) year” and inserted (a)(2)(C)(ii)(a) through (a)(2)(C)(ii)(d); and made related changes.
The 2009 amendment by No. 1293 rewrote (a)(2)(A).

Cross References. Effect of administrative revocation on motor vehicle insurance, § 27-22-106. Administrative driver's license suspension, § 5-65-410 et seq.
Research References
U. Ark. Little Rock L.J.
Legislative Survey, Criminal Law, 8 U. Ark. Little Rock L.J. 559.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.
Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Driving While Intoxicated,
26 U. Ark. Little Rock L. Rev. 367.

Case Notes
Constitutionality.
In General.
Construction.
Burden of Proof.
Jurisdiction.
Notice.
Purpose.
Prior Convictions.
Sentence.
Temporary Permit.

Constitutionality.
Sections 5-65-107, 5-65-109, and this section do not violate the doctrines of prosecutorial discretion and separation of powers. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985) (decision prior to 1989 amendment). This section does not violate the constitutional prohibition on double jeopardy; this section does not impose multiple punishments for the same offense. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). Administrative suspension of a license for 180 days did not rise to the level of punishment because the suspension was that of a privilege, not a right, to operate a motor vehicle; and the Double Jeopardy Clause was not violated by a subsequent conviction on criminal charges. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). The temporary revocation of the privilege of driving for refusal to submit to a chemical analysis is rationally related to the purpose of this section, which is to protect the public from intoxicated drivers and to reduce alcohol-related accidents. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997).
In General.
This section does not take the power of license suspension from the jury; rather, it only directs the court to perform certain acts in executing the sentence. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).
Construction.
Although defendant was charged with DWI second offense but convicted instead of DWI first offense, the defendant was not acquitted of the “charge” of DWI second offense; once the municipal court convicted defendant of DWI first offense, he simply had two separate convictions of violating § 5-65-103, since DWI first offense is just as much a violation of § 5-65-103 as is DWI second offense. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998).
Burden of Proof.
The standard for administrative license suspension established by subdivision (a)(8) is based on the civil standard of proof by a preponderance of the evidence, a lower standard than that required for a criminal conviction. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997).
Jurisdiction.
The court had authority to suspend the driver's license of defendant convicted of driving while intoxicated and speeding, notwithstanding the contention that only the Department of Finance and Administration can suspend a license for driving while intoxicated, since the court still had authority, pursuant to § 27-5-306, to suspend the defendant's driver's license for moving traffic violations. Cook v. State, 333 Ark. 22, 968 S.W.2d 589 (1998).
Notice.
The service provisions of ARCP 4 apply to this section's de novo review proceedings because this section is silent on notice or service of process at the circuit court level. Weiss v. Johnson, 331 Ark. 409, 961 S.W.2d 28 (1998), overruled in part, Wright v. City of Little Rock, 366 Ark. 96, 233 S.W.3d 644 (2006).
Purpose.
The purpose for the sanctions is to prevent drunk driving, and it is clear that the legislative intent was to provide remedial civil sanctions. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). The legislature intended to establish a remedial civil sanction for the purpose of protecting the public from intoxicated drivers and to reduce alcohol-related accidents while softening the sanctions in order to allow the person to continue to operate a vehicle for appropriate purposes. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997).
Prior Convictions.
Trial court properly granted defendant's pretrial motion to suppress evidence of his three prior driving while intoxicated convictions because in those earlier proceedings he was not represented by counsel. State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). The legislative intent of the Omnibus DWI Act of 1983, as stated in § 5-65-101(b), was to enhance penalties by using convictions under the older driving while under the influence act; thus, previous convictions for driving while under the influence under the prior law of intoxicants may be used as prior offenses for enhancement purposes. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). Where certificates of prior convictions did not reflect that the defendants were represented by
counsel at prior trials, admission of the documents held to be error. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). A prior conviction cannot be used collaterally to impose enhanced punishment, unless the misdemeanant was represented by counsel or validly waived counsel. Lovell v. State, 283 Ark.425, 678 S.W.2d 318 (1984); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985). If the record of one of three prior driving while intoxicated convictions is silent as to representation or waiver of counsel, the conviction cannot be used as evidence that the offense charged is a
second or subsequent DWI offense. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Evidence that the defendant was assisted by counsel at the trial of his prior DWI conviction was held insufficient, and therefore, because there was not sufficient evidence of representation, the defendant's third conviction could not be used as evidence that the present conviction was his fourth. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Two separate convictions of DWI first offense, both violations of § 5-65-103, should be counted as two “previous offenses.” Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998).
Sentence.
The sentencing provisions of the Omnibus DWI Act of 1983 are mandatory; where imprisonment is required, such a sentence cannot be reduced or suspended by the judge. Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984). The legislature enacted § 5-65-102 to allow those with no alternate means of commuting to and from work to apply for a restricted driving permit; this section rebuts any argument concerning the
punitive effect of the sanction upon a person whose license has been suspended, as a result of which his ability to maintain his means of livelihood is impaired. Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). Second-offense sanctions could be imposed on defendant with two convictions for DWI first offense. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998).
Temporary Permit.
This section clearly provides for a temporary permit to be issued upon arrest, which remains valid until the trial, but, after a guilty plea or conviction of a first offender, the temporary permit does not continue indefinitely until the first offender receives notice of the right to apply for a restricted license. Liggett v. State, 309 Ark. 608, 832 S.W.2d 813 (1992).
Cited: Rawlings v. State, 284 Ark. 446, 683 S.W.2d 223 (1985); Urich v. State, 293 Ark. 246, 737 S.W.2d 155 (1987); Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991); Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006).
 

5-65-105. Operation of motor vehicle during period of license suspension or
revocation.


Any person whose privilege to operate a motor vehicle has been suspended or revoked under a provision of this act who operates a motor vehicle in this state during the period of the suspension or revocation shall be imprisoned for ten (10) days and may be assessed a fine of not more than one thousand dollars ($1,000).
History. Acts 1983, No. 549, § 14; A.S.A. 1947, § 75-2512; Acts 2001, No. 1715, § 1.

Amendments
. The 2001 amendment added “may be assessed … one thousand dollars ($1,000)” and made minor stylistic changes.
Meaning of “this act”. See note to § 5-65-101.

Case Notes
Evidence.
Sentencing.

Evidence.
Defendant's convictions were supported by substantial evidence where it was shown that (1) shortly after the incident, defendant had a blood-alcohol level of .23 percent, (2) defendant was driving the car that hit two women and narrowly missed a third, (3) just before the impact, defendant was witnessed to speed up and actually swerve the vehicle toward the women's path, and (4) defendant drove away after the impact. Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006). Trial court did not err in denying defendant's motion to suppress the statement he made to an officer who stopped him admitting that he knew his license was suspended; no Miranda warning was needed because, at the time of the statement, defendant sat in his car on the side of the road, he was never arrested, and after the officer gave him the traffic citation he was free to go. Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006). Evidence was sufficient for a conviction of driving with a suspended license where defendant admitted to the police officer that had stopped him that he knew his license was suspended and the state produced a certified driving record at trial indicating that defendant's license was suspended for a DWI that had occurred in December 2002. Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006).
Sentencing.
The sentencing provisions of the Omnibus DWI Act of 1983 are mandatory; where imprisonment is required, such a sentence cannot be reduced or suspended by the judge. Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984).
Cited: Liggett v. State, 309 Ark. 608, 832 S.W.2d 813 (1992); Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992); Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997).
 

5-65-106. Impoundment of license plate.

(a) When any law enforcement officer arrests a person for operating a motor vehicle while that person's operator's license or permit has been suspended or revoked under the laws of any state due to the person having previously been found guilty or having pleaded guilty or nolo contendere to violating § 5-65-103, and if the motor vehicle operated by the person is owned in whole or part by the person, the motor vehicle license plate shall be impounded by the law enforcement officer for no less than ninety (90) days.

(b) If the court determines it is in the best interest of dependents of the offender, the court shall instruct the Director of the Department of Finance and Administration to issue a temporary substitute license plate to that vehicle, and the license plate shall indicate that the original plate has been impounded.
History. Acts 1983, No. 549, § 15; A.S.A. 1947, § 75-2513.
 

5-65-107. Persons arrested to be tried on charges — No charges reduced —
Filing citations.


(a) A person arrested for violating § 5-65-103 shall be tried on those charges or plead to those charges, and no such charges shall be reduced.

(b) Furthermore, when a law enforcement officer issues a citation for violating § 5-65-103, the citation shall be filed with the court as soon as possible.
History. Acts 1983, No. 549, § 8; A.S.A. 1947, § 75-2508.

Case Notes
Constitutionality.
Altering Charges.
Citation.
Reduction of Offense.

Constitutionality.
That part of the Omnibus DWI Act which takes away from the prosecuting attorney and the court the right to reduce a charge and accept plea bargains and places that power within the hands of the policeman who files the charge is not unconstitutional. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). The doctrine of prosecutorial discretion and separation of powers are not violated by this section. Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985). This section and §§ 5-65-104 and 5-65-108 do not violate the doctrines of prosecutorial discretion and separation of powers. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985). It is not unconstitutional for this section to authorize a police officer, rather than the prosecuting
attorney or grand jury, to file the misdemeanor charge. Bigham v. State, 23 Ark. App. 108, 743 S.W.2d 405 (1988).
Altering Charges.
Municipal court erred and prejudiced defendant charged with driving while intoxicated (DWI) when it changed the charge to driving under the influence (DUI) on its own motion, because DUI is not a lesser-included offense of DWI and altering the charge violated this section; and the circuit court erred in trying and convicting defendant of DUI following his appeal from the municipal court, a judgment it was not authorized to render under § 16-19-1105. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Citation.
Where citation issued by police officer was sufficient to charge defendant with the violation, a subsequent attempt by the city attorney to duplicate that charge could not destroy the citation's effectiveness. Bigham v. State, 23 Ark. App. 108, 743 S.W.2d 405 (1988).
Reduction of Offense.
The no-reduction language of this section applies to the reduction of the offense, such as to reckless driving, not to the number of offenses. State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984).
Cited: Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985); Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000).
 

5-65-108. No probation prior to adjudication of guilt.

(a) Section 16-93-301 et seq., allows a circuit court judge, district court judge, or city court judge to place on probation a first offender who pleads guilty or nolo contendere prior to an adjudication of guilt.

(b) Upon successful completion of the probation terms, the circuit court judge, district court judge, or city court judge is allowed to discharge the accused without a court adjudication of guilt and expunge the record.

(c) (1) No circuit court judge, district court judge, or city court judge may utilize the provisions of § 16-93-301 et seq. in an instance in which the defendant is charged with violating § 5-65-103.

(2) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subdivision (c)(1) of this section, in addition to the mandatory penalties required for a violation of § 5-65-103, a circuit court judge, district court judge, or city court judge may utilize probationary supervision solely for the purpose of monitoring compliance with his or her orders and require an offender to pay a reasonable fee in an amount to be established bythe circuit court judge, district court judge, or city court judge.
History. Acts 1983, No. 549, § 9; A.S.A. 1947, § 75-2509; Acts 2005, No. 1768, § 2; 2007, No. 827, § 76.

Amendments. The 2005 amendment substituted “circuit courts, district courts, and city courts” for “circuit and municipal courts” in (a); redesignated former (c) as present (c)(1); added (c)(2); and substituted “circuit judge, district judge, or city judge” for “circuit judge or municipal judge” in
(c)(1). The 2007 amendment deleted “After March 21, 1983” at the beginning of (c)(1), and made related changes.

Case Notes
Constitutionality.
Mandatory Sentencing.

Constitutionality.

This section, §§ 5-65-104 and 5-65-107 do not violate the doctrines of prosecutorial discretion and separation of powers. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985).
Mandatory Sentencing.
The trial court was without authority to suspend the sentence of a defendant convicted of driving while intoxicated or put him on probation so he would not have to attend an alcohol treatment or education program. Harris v. State, 285 Ark. 345, 686 S.W.2d 440 (1985).
Cited: Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984).
 

5-65-109. Presentencing report.

(a) The court shall immediately request and the Office of Alcohol and Drug Abuse Prevention or its designee shall provide a presentence screening and assessment report of the defendant upon a plea of guilty or nolo contendere to or a finding of guilt of violating § 5-65-103 or § 5-65-303.

(b) (1) The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.

(2) (A) After entry of a plea of guilty or nolo contendere or a finding of guilt and if the sentencing of the defendant is delayed by the defendant, the clerk of the court shall notify the defendant by first class mail sent to the defendant's last known address that the defendant has fifteen (15) days to appear and show cause for failing to appear for sentencing.

(B) After expiration of the fifteen (15) days, the court may proceed with sentencing even in the absence of the defendant.

(c) The report shall include, but not be limited to, the defendant's driving record, an alcohol problem assessment, and a victim impact statement when applicable.
History. Acts 1983, No. 549, § 6; A.S.A. 1947, § 75-2506; Acts 1991, No. 899, § 1;
1999, No. 1077, § 10; 2003, No. 129, § 1; 2007, No. 251, § 1; 2007, No. 827, § 77.

Amendments. The 2003 amendment, in (a), inserted “violating § 5-65-103” following “nolo contendere to” and made stylistic changes; redesignated former (b) as present (b)(1); added present (b)(2); and substituted “defendant's” for “offender's” in (c). The 2007 amendment by No. 251, in (a), substituted “Office of Alcohol and Drug Abuse Prevention” for “Highway Safety Program,” and inserted “or § 5-65-303.” The 2007 amendment by No. 827 inserted “of the court” in (b)(2)(A).

Case Notes
Self-Incrimination.
Sentencing.

Self-Incrimination.
This section does not require a defendant to take any action whatever in response to the state's proof or to the presentence report; so there is no compulsory self-incrimination. Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985); Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358
(1985). The presentence screening and assessment report on the defendant required by this section do not violate his right against compulsory self-incrimination. Johnston v. Ft. Smith, 15 Ark. App. 102, 690 S.W.2d 358 (1985). The mere possibility that defendant may be asked questions, the answers to which may have the effect of causing the trial court to sentence more harshly than it otherwise might, did not excuse defendant's violation of the trial court's order that he report to the agency charged with the responsibility of conducting an evaluation. Watson v. City of Fayetteville, 322 Ark. 324, 909
S.W.2d 637 (1995).
Sentencing.
The requirement that the jury fix the sentence does not render the presentence report requirement of this section meaningless; there are situations when the report still will be of value, as when the court fixes the sentence under one of the exceptions of § 5-4-103(b). Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). Subsection (b) does not require that sentencing be delayed 30 days after a finding of guilt. Lowe v. State, 300 Ark. 106, 776 S.W.2d 822 (1989). The trial court committed reversible error in imposing sentence in the absence of a presentence report where (1) the defendant was convicted of driving while intoxicated, (2) after the jury deadlocked in the sentencing phase, the trial court assumed the sentencing function, and (3) the
defendant was given the maximum sentence of a year in jail, a $ 1,000 fine, and suspension of his driver's license for 120 days. Donald v. State, 73 Ark. App. 79, 42 S.W.3d 563 (2001).
Cited: Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984); Rawlings v. State, 284 Ark. 446, 683 S.W.2d 223 (1985); Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985); Hogan v. State, 289 Ark. 402, 712 S.W.2d 295 (1986); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992).
 

5-65-110. Record of violations and court actions — Abstract.

(a) Any magistrate or judge of a court shall keep or cause to be kept a record of any violation of this act presented to that court and shall keep a record of any official action by that court in reference to the violation including, but not limited to, a record of every finding of guilt, plea of guilty or nolo contendere, judgment of acquittal, and the amount of fine and jail sentence.

(b) Within thirty (30) days after sentencing a person who has been found guilty or pleaded guilty or nolo contendere on a charge of violating any provision of this act, the magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty or pleaded guilty or nolo contendere, and the abstract shall be certified by the person so required to prepare it to be true and correct.

(c) The abstract shall be made upon a form furnished by the office and shall include:

(1) The name and address of the party charged;
(2) The number, if any, of the operator's or chauffeur's license of the party charged;
(3) The registration number of the vehicle involved;
(4) The date of hearing;
(5) The plea;
(6) The judgment; and
(7) The amount of the fine and jail sentence, as the case may be.
History. Acts 1983, No. 549, § 10; A.S.A. 1947, § 75-2510.
Meaning of “this act”. See note to § 5-65-101.

Case Notes
Admissibility.

Admissibility.
Where the first two documents of an exhibit were certified by the Deputy Clerk of the Municipal Court and filed with the Department of Finance and Administration as required by subsection (b) of this section, and the documents were duly certified as true and correct copies of the records of the Office of Driver Control by the Manager of the Driver Control Section, the exhibit was admissible as a self-authenticating document pursuant to Evid. Rule 902(4). Price v. State, 48 Ark. App. 37, 889 S.W.2d 40 (1994).
Cited: Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984).
 

5-65-111. Prison terms — Exception.

(a) (1) (A) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103, for a first offense, may be imprisoned for no less than twenty-four (24) hours and no more than one (1) year.

(B) However, the court may order public service in lieu of jail, and in that instance, the court shall include the reasons for the order of public service in lieu of jail in the court's written order or judgment.

(2) (A) However, if a passenger under sixteen (16) years of age was in the vehicle at the time of the offense, a person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103, for a first offense, may be imprisoned for no fewer than seven (7) days and no more than one (1) year.

(B) However, the court may order public service in lieu of jail, and in that instance, the court shall include the reasons for the order of public service in lieu of jail in the court's written order or judgment.

(b) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103 or any other equivalent penal law of another state or foreign jurisdiction shall be imprisoned or shall be ordered to perform public service in lieu of jail as follows:

(1) (A) For no fewer than seven (7) days but no more than one (1) year for the second offense occurring within five (5) years of the first offense or no fewer than thirty (30) days of community service.

(B) (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for no fewer than thirty (30) days but no more than one (1) year for the second offense occurring within five (5) years of the first offense or no fewer than sixty (60) days of community service.

(ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service;

(2) (A) For no fewer than ninety (90) days but no more than one (1) year for the third offense occurring within five (5) years of the first offense or no fewer than ninety (90) days of community service.

(B) (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for no fewer than one hundred twenty days (120) days but no more than one (1) year for the third offense occurring within five (5) years of the first offense or no fewer than one hundred twenty (120) days of community service.

(ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service;

(3) (A) For at least one (1) year but no more than six (6) years for the fourth offense occurring within five (5) years of the first offense or not less than one (1) year of community service and is guilty of a felony.

(B) (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for at least two (2) years but no more than six (6) years for the fourth offense occurring within five (5) years of the first offense or not less than two (2) years of community service and is guilty of a felony.

(ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service; and

(4) (A) (i) For at least two (2) years but no more than ten (10) years for the fifth or subsequent offense occurring within five (5) years of the first offense or not less than two (2) years of community service and is guilty of a felony.

(ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service.

(B) (i) However, if a person under sixteen (16) years of age was in the vehicle at the time of the offense, for at least three (3) years but no more than ten (10) years for the fifth offense occurring within five (5) years of the first offense or not less than three (3) years of community service and is guilty of a felony.

(ii) If the court orders community service, the court shall clearly set forth in written findings the reasons for the order of community service.

(c) For any arrest or offense occurring before July 30, 1999, but that has not reached a final disposition as to judgment in court, the offense shall be decided under the law in effect at the time the offense occurred, and any defendant is subject to the penalty provisions in effect at that time and not under the provisions of this section.

(d) It is an affirmative defense to prosecution under subdivisions (a)(2), (b)(1)(B), (b)(2)(B), (b)(3)(B), and (b)(4)(B) of this section that the person operating or in actual physical control of the motor vehicle was not more than two (2) years older than the passenger.

(e) A prior conviction for § 5-10-105(a)(1)(A) or (B) is considered a previous offense for purposes of subsection (b) of this section.
History. Acts 1983, No. 549, § 4; A.S.A. 1947, § 75-2504; Acts 1997, No. 1236, § 1; 1999, No. 1077, § 11; 2001, No. 1206, § 1; 2003, No. 1461, §§ 1, 2; 2009, No. 650, § 3.

Amendments. The 2001 amendment substituted “but no more than” for “and no more than” in (b)(1) and (b)(2); deleted “or subsequent” preceding “offense occurring” in (b)(3); and added (b)(4) and made related changes. The 2003 amendment added (a)(2), (b)(1)(B), (b)(2)(B), (b)(3)(B), (b)(4)(A)(ii), (b)(4)(B) and (d); added “service and shall be guilty of a felony,” at the end of (a)(4)(A)(i); and made stylistic and related changes. The 2009 amendment added (e).

Research References
Ark. L. Rev.
Notes, Shockley v. State: The Constitutionality of the Arkansas Habitual Offender Determination
Procedure, 39 Ark. L. Rev. 553.
U. Ark. Little Rock L.J.
Survey — Criminal Law, 11 U. Ark. Little Rock L.J. 175.
Seventeenth Annual Survey of Arkansas Law — Criminal Law, 17 U. Ark. Little Rock L.J. 448.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.
Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Driving While Intoxicated,
26 U. Ark. Little Rock L. Rev. 367.

Case Notes
Constitutionality.
Construction.
Applicability of Other Provisions.
Arrest.
Assistance of Counsel.
Bifurcation of Trial.
First Offense.
Indictment or Information.
Prior Convictions.
Sentencing.

Constitutionality.
The application of subsection (b)(3) to the defendant did not violate the prohibition against ex post facto laws, notwithstanding that the pre-1999 version of the statute only allowed the state to rely on prior DWI convictions from the last three, rather than five, years; the application of subsection (b)(3) did not improperly allow the state to consider prior convictions that were more than three years old, as the defendant had notice, by the amendment of the statute, that any future offense would subject him to increased penalties based on convictions in the previous five years. Berry v.State, 74 Ark. App. 141, 45 S.W.3d 435 (2001).
Construction.
The language of this section is unambiguous: the element of fourth-offense DWI is based on the number of prior offenses, not how they were designated. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996).
Applicability of Other Provisions.
Section 5-4-502 is inapplicable to the Omnibus DWI Act because it applies only to the determination of habitual offender status pursuant to § 5-4-501; that statute provides extended terms of imprisonment for those who have committed more than one but less than four felonies. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Defendant's sentence was not authorized under § 5-65-111(b)(4) because the trial court should not have used the habitual offender statute, § 5-4-501, in conjunction with the DWI sentencing enhancement provision; therefore, his sentence was properly modified from 15 to 10 years' imprisonment. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).
Arrest.
A private person cannot make an arrest for second offense driving while intoxicated. Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990).
Assistance of Counsel.
If the record is silent as to representation of the defendant or waiver of the right to counsel, the conviction cannot be used as evidence that the offense charged is the fourth driving while intoxicated offense, and thus a felony under this section. Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986). Where the state introduced into evidence duly certified copies of documents purporting to evidence three prior convictions for the offense of driving while intoxicated and two of the documents contained the entry “Trial Docket,” and immediately beneath appeared the name of an attorney, and clerk of the court in which the convictions were obtained testified as to the manner in which such docket entries were made and that appearance of attorney's name meant that he had represented defendant and that, had defendant not been represented by an attorney, the word “none” would have appeared on the docket where attorney's name was shown, record entry was not too ambiguous to establish representation by counsel. Rodgers v. State, 31 Ark. App.
159, 790 S.W.2d 911 (1990). Certified copies of court dockets introduced to prove defendant's prior convictions of DWI, on which there was a column designated “Atty:” and immediately after this designation on the first docket sheet appeared names, under Tims v. State, 26 Ark. App. 102, 770 S.W.2d 211, supplemental op., reh'g denied, 26 Ark. App. 106-A, 770 S.W.2d 211 (1989), because the entries could mean that the attorneys were either defense counsel or the prosecutor, in the absence of further evidence, the record was too ambiguous to determine whether defendant was represented or had validly waived counsel; therefore, defendant's conviction was reversed. Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993).
Bifurcation of Trial.
A trial for driving while intoxicated as a fourth offense should be bifurcated. The jury must first hear evidence of guilt or innocence; if the defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of previous convictions. The trial judge will still determine whether the accused was represented by, or entered a valid waiver of, counsel in the previous convictions alleged and will exclude evidence of any conviction not meeting the counsel requirement. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985).
First Offense.
Driving While Intoxicated (DWI), First Offense is a lesser included offense of DWI, Second Offense. Hagar v. City of Fort Smith, 317 Ark. 209, 877 S.W.2d 908 (1994).
Indictment or Information.
Information alleging that defendant had three prior DWI “arrests” rather than three prior DWI “convictions” held sufficient where evidence showed that defendant did in fact have three DWI convictions. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996).
Prior Convictions.
Trial court properly granted defendant's pretrial motion to suppress evidence of his prior driving while intoxicated convictions, because in those earlier proceedings he was not represented by counsel. State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). The legislative intent of the Omnibus DWI Act of 1983, as stated in § 5-65-101, was to enhance penalties by using convictions under the prior driving while under the influence act; thus, previous
convictions for driving while under the influence of intoxicants under the prior law may be used as prior offenses for enhancement purposes. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). A prior conviction cannot be used collaterally to impose enhanced punishment, unless the misdemeanant was represented by counsel or validly waived counsel. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985). Where documents did not reflect that the defendants were represented by counsel at their prior trials, admission of the documents held to be error. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The state is barred from using prior uncounseled misdemeanor convictions for driving while intoxicated to enhance punishment for a subsequent offense. Steele v. State, 284 Ark. 340, 681
S.W.2d 354 (1984). But see Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). Evidence held insufficient to meet minimum standards of proof of prior convictions for driving while intoxicated. Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984). If a defendant did not have counsel and did not waive counsel when he was first convicted, that conviction cannot be used for enhancement, and if it is so used the error can be corrected on appeal. Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985). If the record of prior driving while intoxicated conviction is silent as to representation or waiver of counsel, the conviction cannot be used as evidence that the offense charged is the fourth DWI offense and thus a felony under this section. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). The existence of three prior convictions constitutes an element of DWI, fourth offense, and thus the trial court deprived the defendant of his right to have the jury determine a material element of the offense charged where after the jury returned a guilty verdict, the judge heard evidence in chambers to determine the number of prior convictions, and then instructed the jury that the range of sentences should be based on three prior convictions. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Evidence that the defendant was assisted by counsel at the trial of previous DWI conviction held insufficient. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Where the municipal judge, in his own handwriting, noted that the defendant's rights had been explained and waived in a previous prosecution for driving while intoxicated, the trial court properly considered the prior conviction in setting sentence. Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986). The General Assembly did not intend to allow a defense attorney to reduce an enhanced penalty for third offense driving while intoxicated to a second offense merely by obtaining continuances so that the last conviction would fall outside the three-year period; similarly, it did not intend that delay due to court congestion might reduce the degree and penalty. Accordingly, the dates the defendant's prior offenses were committed are the determinative dates for determining the applicability of enhanced punishment. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). Where state did not show that all three of the defendant's prior violations occurred within three
years of the first violation; but instead, only showed that all three convictions occurred within three years, the case was reversed and remanded. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). Where the record showed that the defendant waived the right to counsel at the time he pleaded guilty to the DWI charge in the municipal court, the record did not have to also show that the judge advised defendant as to the consequences of a subsequent conviction for the same charge before the conviction could be introduced into evidence in the subsequent case. And although the conviction was marked “D.W.I. 2nd Offense,” that was not significant where it was, in fact, the defendant's third DWI conviction within three years and defendant knew how many times he had been convicted of that offense. Dickerson v. State, 24 Ark. App. 36, 747 S.W.2d 122 (1988). The offense of driving while intoxicated is less than a felony, unless one is found guilty of a fourth or subsequent offense occurring within three years of the first one. Credit v. State, 25 Ark. App. 309, 758 S.W.2d 10 (1988). The fact of prior convictions is an element of the crime of driving while intoxicated, fourth offense, and is to be determined by the jury. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). In the context of a driving while intoxicated (DWI) conviction, the judgment of the district court
stands until overturned by a superior court and is a valid DWI offense to be used under subdivision (b)(3) of this section; thus, defendant's judgment of DWI in the district court could be counted as one of four DWI convictions in support of enhanced penalties for multiple DWI offenses. Swint v. State, 356 Ark. 361, 152 S.W.3d 226 (2004).
Sentencing.
Where the defendants were convicted of violating the Omnibus DWI Act of 1983, the trial court did not have the authority to suspend their sentences, since the sentencing provisions of the act are mandatory. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The sentencing provisions of the Omnibus DWI Act of 1983 are mandatory; where imprisonment is required, such a sentence cannot be reduced or suspended by the judge. Lovell v. State, 283 Ark. 434, 283 Ark. 434A, 283 Ark. 425, 681 S.W.2d 395 (1984). The legislature did not intend that this section, the specific criminal enhancement statute for driving while intoxicated, should be coupled with the general criminal enhancement statute, § 5-4-501, for the resulting purpose of creating a greater sentence than if either statute had been applied singly. Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988). This statute does not confer upon the trial court authority to instruct the jury on public service as an alternative sentence, rather, the court may order public service in lieu of jail, presumably as part of sentencing following a bench trial, or in the nature of post-conviction relief. McEntire v.State, 305 Ark. 470, 808 S.W.2d 762 (1991).
Original judgment and commitment order for driving while intoxicated, fourth offense, was illegal because the two-year imprisonment followed by a five-year term of probation exceeded the maximum penalty for the offense committed as defined under subdivision (b)(3) and because the imposition of probation following a term of imprisonment is prohibited by § 5-4-104. Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1996). Critical point for counting driving while intoxicated (DWI) offenses is at the sentencing phase, not the date that the crime is committed, and subdivision (b)(3)(A) plainly contemplates determining total DWI offenses within five years of the first offense and, to the extent Ark. Model Jury Instruction Crim. § 2d 9201.4 is in conflict with this method of counting prior offenses, this section prevails. State v. Sola, 354 Ark. 76, 118 S.W.3d 95 (2003).
Cited: Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Municipal Court v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987); Tims v. State, 770 S.W.2d 211 (1989); Deweese v. State, 26 Ark. App.126, 761 S.W.2d 945 (1988); Worthington v. State, 301 Ark. 354, 786 S.W.2d 117 (1990); Lukehart v. State, 32 Ark. App. 152, 798 S.W.2d 117 (1990); Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997); Wray v. State, 64 Ark. App. 166, 984 S.W.2d 45 (1998).
 

5-65-112. Fines.
Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103 shall be fined:

(1) No less than one hundred fifty dollars ($150) and no more than one thousand dollars ($1,000) for the first offense;

(2) No less than four hundred dollars ($400) and no more than three thousand dollars ($3,000) for the second offense occurring within five (5) years of the first offense; and

(3) No less than nine hundred dollars ($900) and no more than five thousand dollars ($5,000) for the third or subsequent offense occurring within five (5) years of the first offense.
History. Acts 1983, No. 549, § 5; A.S.A. 1947, § 75-2505; Acts 1993, No. 106, § 1; 1999, No. 1077, § 12.

Case Notes
Applicability.
Prior Convictions.

Applicability.
Where the defendants were convicted of violating the Omnibus DWI Act of 1983, the trial court did not have the authority to suspend their sentences, since the sentencing provisions of the act are mandatory. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Prior Convictions.
Prior convictions may not be considered for purposes of the sentencing enhancement for subsequent convictions for driving while intoxicated unless the record shows the accused had counsel in the trials leading to the prior convictions or that the right to counsel was waived. Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985). If a defendant did not have counsel and did not waive counsel when he was first convicted, that conviction cannot be used for enhancement, and if it is so used the error can be corrected on appeal. Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985).
Cited: Phillips v. State, 304 Ark. 656, 803 S.W.2d 926 (1991); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997).
 

5-65-114. Inability to pay — Alternative public service work.
If it is determined that any individual against whom fines, fees, or court costs are levied for driving while intoxicated or driving while impaired is financially unable to pay the fines, fees, or costs, the court levying the fines, fees, or costs shall order the individual to perform public service work of such type and for such duration as deemed appropriate by the court.
History. Acts 1983, No. 918, § 4; A.S.A. 1947, § 75-2533.
Cross References. Fines defined, § 12-41-701.

 

5-65-115. Alcohol treatment or education program- Fee.

(a)(1) Any person whose driving privileges are suspendded or revoked for violating §5-65-103, §5-65-303, §5-65-310, or §5-65-203 is required to complete an alcohol education program provided by a contractor with the Office of Alcohol and Drug Abuse Prevention or an alcoholism treatment program licensed by the Office of Alcohol and Drug Abuse Prevention.

(2)(a) The alcohol education program may collect a program fee of up to one hundred twenty five dollars ($125) per enrollee to offset program costs.

(B)(i) A person ordered to complete an alcohol education program under this section may be required to pay, in addition to the costs collected for education or treatment, a fee of up to twenty-five dollars ($25.00) to offset the additional costs associated with reporting requirements under this subchapter.

(ii) The alcohol education program shall report monthly to the Office of Alcohol and Drug Abuse Prevention all revenue derived from this fee.

(b)(1) A person whose license is suspended or revoked for violating § 5-65-103 shall:

(A) Both:

(i) Furnish proof of attendance at and completion of the alcoholism treatment program or alcohol education program required under 5-65-104 (b)(1) before reinstatement of his or her suspended or revoked driver's license; and

(ii) Pay any fee for reinstatement required under  § 5-65-119 or § 5-65-304; or

(B) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.

(2) An application for reinstatement shall be made to the Office of Driver Services.

(c) Even if a person has filed a de novo petition for review pursuant to § 5-65-402, the person is entitled to reinstatement of driving privileges upon complying with this section and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occured.

(d)(1) A person suspended under this act may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court.

(2) However, the person is not entitled to any refund of a fee paid if the charges are dismissed or if the person is acquitted of the charges.

(e) Each alcohol education program or alcoholism treatment program shall remit the fees imposed under this section to the Office of Alcohol and Drug Abuse Prevention.

History. Acts 1983, §7; 1985, No. 108, § 1; A.S.A. 1947, § 75-2507; Acts 1991, No. 486, § 1; 1995, No.172, § 1; 1995, No. 263,§ 1; 1995, No. 1032, § 1; 1995, No.1256, § 20; 1995 (1st Ex. Sess), No. 13, § 4; 1999, No. 1077, § 13; 2003, No. 1462, § 2; 2005, No. 1768, § 3; 2007, No. 251, § 2; 2007, No. 827, § 78; 2009, No. 748, § 28.

 
 

5-65-116. Denial of driving privileges for minor — Restricted permit.

(a) As used in this section, “drug offense” means the same as in § 5-64-710.

(b) (1) (A) If a person who is less than eighteen (18) years of age pleads guilty or nolo contendere to or is found guilty of driving while intoxicated under § 5-65-101 et seq., or of any criminal offense involving the illegal possession or use of controlled substances, or of any drug offense, in this state or any other state, or is found by a juvenile court to have committed such an offense, the court having jurisdiction of the matter, including any federal court, shall prepare and transmit to the Department of Finance and Administration an order of denial of driving privileges for the minor.

(B) A court within the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section within twenty-four (24) hours after the plea or finding to the department.

(C) A court outside Arkansas having jurisdiction over any person holding driving privileges issued by the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section pursuant to an agreement or arrangement entered into between that state and the Director of the Department of Finance and Administration.

(D) An arrangement or agreement under subdivision (b)(1)(C) of this section may also provide for the forwarding by the department of an order issued by a court within this state to the state where the person holds driving privileges issued by that state.

(2) For any person holding driving privileges issued by the State of Arkansas, a court within this state in a case of extreme and unusual hardship may provide in an order for the issuance of a restricted driving permit to allow driving to and from a place of employment or driving to and from school.

(c) A penalty prescribed in this section or § 27-16-914 is in addition to any other penalty prescribed by law for an offense covered by this section and § 27-16-914.

(d) In regard to any offense involving illegal possession under this section, it is a defense if the controlled substance is the property of an adult who owns the vehicle.
History. Acts 1989 (3rd Ex. Sess.), No. 93, §§ 1, 3, 4; 1993, No. 1257, § 2.

A.C.R.C. Notes. Acts 1993, No. 1257, § 7, provided:
“The Director of the Department of Finance and Administration is authorized to enter into any agreements or arrangements with other states and to take all action deemed necessary or proper, including the making and promulgation of rules and regulations, in order that the amendments contained in this Act may be effectuated.”
Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 93, §§ 1, 3, 4, are also codified as § 5-64-710.

Research References
U. Ark. Little Rock L.J.
Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

Case Notes
Constitutionality.
Validity.

Constitutionality.
The classification drawn at age eighteen in Acts 1989, No. 93 was reasonable and does not approach the level of irrationality or arbitrariness necessary to deem it unconstitutional. Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991).
Validity.
This section was not repealed by implication by § 27-16-915. Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992), cert. denied, Manatt v. Arkansas, 507 U.S. 1005, 113 S. Ct. 1647, 123 L. Ed. 2d 268 (1993).
 

5-65-117. Seizure and sale of motor vehicles.

(a) (1) (A) Any person who pleads guilty or nolo contendere or is found guilty of violating § 5-65-103 for a fourth offense occurring within three (3) years of the first offense, at the discretion of the court, may have his or her motor vehicle seized.

(B) If the motor vehicle is seized, the title to the motor vehicle is forfeited to the state.

(2) (A) If ordered by the court, it is the duty of the sheriff of the county where the offense occurred to seize the motor vehicle.

(B) The court may issue an order directing the sheriff to sell the motor vehicle seized at a public auction to the highest bidder within thirty (30) days from the date of judgment.

(b) (1) The sheriff shall advertise the motor vehicle for sale for a period of two (2) weeks prior to the date of sale by at least one (1) insertion per week in a newspaper having a bona fide circulation in the county.

(2) The notice shall include a brief description of the motor vehicle to be sold and the time, place, and terms of the sale.

(c) The proceeds of the sale of the seized motor vehicle shall be deposited into the county general fund.

(d) (1) After the sheriff has made the sale and has turned over the proceeds of the sale to the county treasurer, the sheriff shall report his or her actions to the court in which the defendant was tried.

(2) The report required by subdivision (d)(1) of this section shall be filed with the court within sixty (60) days from the date of judgment.

(e) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.
History. Acts 1989 (3rd Ex. Sess.), No. 94, § 1.
 

5-65-118. Additional penalties — Ignition interlock devices.

(a) (1) (A) (i) In addition to any other penalty authorized for a violation of this chapter, upon an arrest of a person for violating § 5-65-103 for a first or second offense, the Office of Driver Services may restrict the person to operating only a motor vehicle that is equipped with a functioning ignition interlock device.

(ii) The restriction may continue for a period of up to one (1) year after the person's license is no longer suspended or restricted under the provisions of § 5-65-104.

(B) Upon a finding that a person is financially able to afford an ignition interlock device and upon an arrest for a violation of § 5-65-103 for a third or subsequent offense, the office may restrict the offender to operate only a motor vehicle that is equipped with a functioning ignition interlock device for up to one (1) year after the person's license is no longer suspended or restricted under § 5-65-104.

(2) In accordance with the requirements under the provisions of § 5-65-104, the office may issue an ignition interlock restricted license to the person only after the person has verified installation of a functioning ignition interlock device to the office in any motor vehicle the person intends to operate, except for an exemption allowed under subsection (g) of this section.

(3) The office shall establish:

(A) A specific calibration setting no lower than two hundredths of one percent (.02%) nor more than five hundredths of one percent (.05%) of alcohol in the person's blood at which the ignition interlock device will prevent the motor vehicle's being started; and

(B) The period of time that the person is subject to the restriction.

(4) As used in this section, “ignition interlock device” means a device that connects a motor vehicle ignition system to a breath-alcohol analyzer and prevents a motor vehicle ignition from starting if a driver's blood alcohol level exceeds the calibration setting on the device.

(b) Upon restricting the offender to the use of an ignition interlock device, the office shall:

(1) (A) State on the record the requirement for and the period of use of the ignition interlock device.

(B) However, if the office restricts the offender to the use of an ignition interlock device in conjunction with the issuance of an ignition interlock restricted license under a provision of § 5-65-104, the period of requirement of use of the ignition interlock device shall be at least the remaining time period of the original suspension imposed under § 5-65-104;

(2) Ensure that the records of the office reflect that the person may not operate a motor vehicle that is not equipped with an ignition interlock device;

(3) Attach or imprint a notation on the driver's license of any person restricted under this section stating that the person may operate only a motor vehicle equipped with an ignition interlock device;

(4) Require the person restricted under this section to show proof of installation of a certified ignition interlock device prior to the issuance by the office of an ignition interlock restricted license under a provision of § 5-65-104;

(5) Require proof of the installation of the ignition interlock device and periodic reporting by the person for verification of the proper operation of the ignition interlock device;

(6) Require the person to have the ignition interlock device serviced and monitored at least every sixty-seven (67) days for proper use and accuracy by an entity approved by the Department of Health; and

(7) (A) Require the person to pay the reasonable cost of leasing or buying and monitoring and maintaining the ignition interlock device.

(B) The office may establish a payment schedule for the reasonable cost of leasing or buying and monitoring and maintaining the ignition interlock device.

(c) (1) A person restricted under this section to operate only a motor vehicle that is equipped with an ignition interlock device may not solicit or have another person start or attempt to start a motor vehicle equipped with an ignition interlock device.

(2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.

(d) (1) A person may not start or attempt to start a motor vehicle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle to a person who is restricted under this section to operate only a motor vehicle that is equipped with an ignition interlock device.

(2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.

(e) (1) A person may not tamper with or in any way attempt to circumvent the operation of an ignition interlock device that has been installed in a motor vehicle.

(2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.

(f) (1) A person may not knowingly provide a motor vehicle not equipped with a functioning ignition interlock device to another person who the provider of the vehicle knows or should know was restricted to operate only a motor vehicle equipped with an ignition interlock device.

(2) Except as provided in subsection (g) of this section, a violation of this subsection is a Class A misdemeanor.

(g) (1) Any person found to have violated subsections (c)-(f) of this section is guilty of a Class A misdemeanor.

(2) However, the penalty provided in subdivision (g)(1) of this section does not apply if:

(A) The starting of a motor vehicle or the request to start a motor vehicle equipped with an ignition interlock device is done for the purpose of safety or mechanical repair of the ignition interlock device or the motor vehicle and the person subject to the restriction does not operate the motor vehicle; or

(B) (i) The court finds that a person is required to operate a motor vehicle in the course and scope of the person's employment and, if the motor vehicle is owned by the employer, that the person may operate that motor vehicle during regular working hours for the purposes of his or her employment without installation of an ignition interlock device if the employer has been notified of the driving privilege restriction and if proof of that notification is with the motor vehicle.

(ii) However, the employment exemption in subdivision (g)(2)(B)(i) does not apply if the business entity that owns the motor vehicle is owned or
controlled by the person who is prohibited from operating a motor vehicle not equipped with an ignition interlock device.

(h) If the person restricted under this section cannot provide proof of installation of a functioning ignition interlock device to the office under subsection (a) of this section, the office shall not issue an ignition interlock restricted license as authorized under this section.

(i) In addition to any other penalty authorized under this section, if the office finds that a person has violated a condition under this section related to the proper use, circumvention, or maintenance of an ignition interlock device, the office shall revoke the ignition interlock restricted license and reinstate a license suspension for the term of the original license suspension.

(j) Any person whose license was suspended under § 5-65-104 who would otherwise be eligible to obtain an ignition interlock restricted license may petition the office for a hearing and the office or its designated official may issue an ignition interlock restricted license as authorized under the applicable provisions of §§ 5-65-104 and 5-65-205.

(k) (1) The department shall:

(A) Certify the ignition interlock devices for use in this state,
(B) Approve the entities that install and monitor the ignition interlock devices; and
(C) Adopt rules and regulations for the certification of the ignition interlock devices and ignition interlock device installation.

(2) The rules and regulations shall require an ignition interlock device, at a minimum, to:

(A) Not impede the safe operation of the motor vehicle;
(B) Minimize the opportunities to be bypassed;
(C) Work accurately and reliably in an unsupervised environment;
(D) Properly and accurately measure the person's blood alcohol levels;
(E) Minimize the inconvenience to a sober user; and
(F) Be manufactured by an entity that is responsible for installation, user training, and servicing and maintenance of the ignition interlock device, and that is capable of providing monitoring reports to the office.

(3) The division shall develop a warning label to be affixed to any ignition interlock device used in the state to warn any person of the possible penalties for tampering with or attempting to circumvent the ignition interlock device.

(4) The division shall:

(A) Publish and update a list of certified ignition interlock device manufacturers and approved ignition interlock device installers; and

(B) Periodically provide the list required by subdivision (k)(4)(A) of this section to the office.
History. Acts 1993, No. 298, § 1; 1995, No. 1296, § 8; 1999, No. 1468, § 2; 2001, No.1206, § 2; 2001, No. 1501, § 2; 2005, No. 1234, § 2; 2007, No. 827, § 79.

Amendments. The 2001 amendment by No. 1206 inserted “for a first or second offense” in present (a)(1)(A); added (a)(1)(B); substituted “office” for “Office of Driver Services” in (a)(2); redesignated former (a)(3) as present (a)(3)(A) and (a)(3)(B); and made minor stylistic changes
throughout. The 2001 amendment by No. 1501, in (i), deleted “prior to July 30, 1999” following “§ 5-65-104” and substituted “§§ 5-65-104 and 5-65-205” for “§ 5-65-104.” The 2005 amendment rewrote this section. The 2007 amendment deleted “and so notify the office” at the end of (b)(1)(B), and made a related change.

Research References

ALR.
Validity, construction, and application of ignition interlock laws. 15 A.L.R.6th 375.
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.

Case Notes
Enforcement.

Enforcement.
The circuit court has no authority to issue a writ of prohibition preventing a municipal court's enforcement of subdivision (a)(1) of this section. State v. Wilcox, 325 Ark. 429, 927 S.W.2d 337 (1996).
Cited: Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).
 

5-65-119. Distribution of fee.

(a) The Office of Driver Services shall charge a fee to be calculated as provided under subsection (b) of this section for reinstating a driving privilege suspended or revoked because of an arrest for operating or being in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight-hundredths (0.08) or more in the person's breath or blood, § 5-65-103, or refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person's blood or breath, § 5-65-205, and the fee shall be distributed as follows:

(1) Seven percent (7%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Office of Alcohol Testing of the Division of Health of the Department of Health and Human Services;

(2) Thirty-three percent (33%) of the revenues derived from this fee shall be deposited as special revenues into the State Treasury into the Constitutional Officers Fund and the State Central Services Fund as a direct revenue to be used by the Office of Driver Services for use in supporting the administrative driver's licensing revocation and sanctions programs provided for in this subchapter;

(3) Ten percent (10%) of the revenues derived from this fee shall be deposited into the State Treasury, and the Treasurer of State shall credit them as general revenues to the various funds in the respective amounts to each and to be used for the purposes as provided in the Revenue Stabilization Law, § 19-5-101 et seq.; and

(4) Fifty percent (50%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues to the credit of the Department of Arkansas State Police Fund.

(b) (1) (A) The reinstatement fee shall be calculated by multiplying one hundred fifty dollars ($150) by each separate occurrence of an offense resulting in an administrative suspension order under § 5-65-103 or § 5-65-205 unless the administrative suspension order has been removed because:

(i) The person has been found not guilty of the offense by a circuit court or district court; or

(ii) A de novo review of the administrative suspension order by the Office of Driver Services results in the removal.

(B) The fee under this section is supplemental to and in addition to any fee imposed under § 5-65-304, § 5-65-310, § 27-16-508, or § 27-16-808.

(2) As used in this subsection, “occurrence” means each separate calendar date when an offense or offenses take place.
History. Acts 1995, No. 802, § 2; 2001, No. 561, § 6; 2003, No. 1001, § 1; 2005, No.1992, § 1.

A.C.R.C. Notes. Acts 1995, No. 802, § 5, provided, in part, that this section, “regarding the charging of the reinstatement fee for the driver licenses suspended for driving while intoxicated offenses shall be effective on July 1, 1995.”

Amendments. The 2001 amendment inserted “of the Revenue Division of the Department of Finance and Administration” in the introductory language and deleted it following “Office of Driver Services” in (2); in the introductory language, substituted “an alcohol concentration of eighthundredths (0.08) or more in the person's breath or” for “one-tenth of one percent (0.1%) or more by weight of alcohol in the person's” and inserted “or breath”; and substituted “Office of Alcohol Testing of the Department of Health” for “Department of Health's Blood Alcohol Program” in (1). The 2003 amendment, in the introductory paragraph, substituted “one hundred fifty dollars ($150)” for “seventy-five dollars ($75.00)”; substituted “Seven percent (7%)” for “Fourteen percent (14%)” in (1); substituted “Thirty-three percent (33%)” for “Sixty-six percent (66%)” in (2); substituted “Ten percent (10%)” for “Twenty percent (20%)” in (3); and added (4) and made related changes. The 2005 amendment added the subsection (a) designation; substituted “to be calculated as
provided under subsection (b) of this section” for “of one hundred fifty dollars ($150)” in present (a); and added (b).

Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.

 

5-65-120. Restricted driving permit.

(a) Following an administrative hearing for suspension or revocation of a driver's license as provided for in § 5-65-402, or upon a request of a person whose privilege to drive has been denied or suspended, the Office of Driver Services or its designated agent may modify the denial or suspension in a case of extreme and unusual hardship by the issuance of a restricted driving permit when, upon a review of the person's driving record for a time period of five (5) years prior to the current denial, revocation, or suspension of driving privilege or a driver's license, at the discretion of the office or its designated agent it is determined that:

(1) The person:

(A) In not a multiple traffic law offender; or

(B) Does not present a threat to the general public; and

(2) No other adequate means of transportation exists for the person except to allow driving in any of the following situations:

(A) To and from the person's place of employment;

(B) In the course of the person's employment;

(C) To and from an educational institution for the purpose of attending a class if the person is enrolled and regularly attending a class at the institution;

(D) To and from an alcohol education program or alcoholism treatment program for drunk drivers; or

(E) To and from a hospital or clinic for medical treatment or care for an illness, disease, or other medical condition of the person or a family member.

(b) The restricted driving permit shall state the specific times and circumstances under which driving is permitted.

(c)

(c) The restricted driving permit shall not be granted to any person suspended for a second or subsequent offense of violating § 5-65-103, § 5-65-205, § 5-65-303, or § 5-65-310.        

History..Acts 1995, No. 802, §§ 3, 5; 1997, No. 1325, § 3; 1999, No. 1077, § 14; 2007, No. 827, § 80; 2009, No. 748, § 29; 2009, No. 1293, § 2.

5-65-121. Victim impact panel attendance — Fee.

   (a)

         (1) A person whose driving privileges are suspended or revoked for violating § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, or § 3-3-203 shall attend a victim impact panel sponsored by an organization approved by the Office of Alcohol and Drug Abuse Prevention of the Department of Human Services.              

         (2) The organization selected by the office shall be an organization that provides statewide services to victims of drunk driving.              

   (b)

         (1) The organization approved by the office may collect a program fee of ten dollars ($10.00) per enrollee to offset program costs to be remitted to the organization.              

         (2) The organization approved by the office shall provide proof of attendance and completion to the person required to attend the victim impact panel upon completion of the victim impact panel.              

History..Acts 2009, No. 946, § 1.

Subchapter 2 — Chemical Analysis of Body Substances

5-65-201. Rules and regulations.

   The Division of Health of the Department of Health and Human Services may promulgate rules and regulations reasonably necessary to carry out the purposes of this subchapter.        

History..Acts 1969, No. 106, § 2; A.S.A. 1947, § 75-1046.

5-65-202. Implied consent.

   (a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to one (1) or more chemical tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:        

   (1) The person is arrested for any offense arising out of an act alleged to have been committed while the person was driving while intoxicated or driving while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood;              

   (2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or              

     (3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood.              

  (b) Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and one (1) or more chemical tests may be administered subject to the provisions of § 5-65-203.        

History..Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 75, § 1; 1993, No. 132, § 1; 2001, No. 561, § 7; 2009, No. 431, § 1.

5-65-203. Administration.

   (a) One (1) or more chemical tests authorized in § 5-65-202 shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person's breath or blood.        

  (b)

 (1) The law enforcement agency by which the law enforcement officer is employed shall designate which chemical test or chemical tests shall be administered, and the law enforcement agency is responsible for paying any expense incurred in conducting the chemical test or chemical tests.              

 (2) If the person tested requests that additional chemical test or chemical tests be made, as authorized in § 5-65-204(e), the cost of the additional chemical test or chemical tests shall be borne by the person tested, unless the person is found not guilty in which case the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test or chemical tests.              

(3) If any person objects to the taking of his or her blood for a chemical test, as authorized in this chapter, the breath or urine of the person may be used to make the chemical analysis.              

History..Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 75, § 1; 2001, No. 561, § 8; 2009, No. 431, § 2.

5-65-204. Validity — Approved methods.

   (a)

   (1) “Alcohol concentration” means either:              

    (A) Grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood; or                    

     (B) Grams of alcohol per two hundred ten liters (210 l) of breath.                    

     (2) The alcohol concentration of other bodily substances is based upon grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood, the same being percent weight per volume or percent alcohol concentration.              

   (b)

    (1)

   (A) A chemical analyses made to determine the presence and amount of alcohol of a person's blood, urine, or breath to be considered valid under the provisions of this act shall be performed according to a method approved by the Division of Health of the Department of Health and Human Services or by an individual possessing a valid permit issued by the division for this purpose.                    

  (B) The division may:                    

   (i) Approve satisfactory techniques or methods for the chemical analysis;                          

   (ii) Ascertain the qualifications and competence of an individual to conduct the chemical analysis; and                          

     (iii) Issue a permit that is subject to termination or revocation at the discretion of the division.                          

(2) However, a method of chemical analysis of a person's blood, urine, or other bodily substance made by the State Crime Laboratory for determining the presence of one (1) or more controlled substances or any intoxicant is exempt from approval by the division or the State Board of Health.              

(c) To be considered valid under the provisions of this section, a chemical analysis of a person's blood, urine, breath, or other bodily substance for determining the alcohol content of the blood or breath shall be performed according to a method approved by the board.        

  (d)

 (1) When a person submits to a blood test at the request of a law enforcement officer under a provision of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.              

 (2) The limitation in subdivision (d)(1) of this section does not apply to the taking of a breath or urine specimen.              

  (3)

(A) No person, institution, or office in this state that withdraws blood for the purpose of determining alcohol or controlled substance content of the blood at the request of a law enforcement officer under a provision of this chapter shall be held liable for violating any criminal law of this state in connection with the withdrawing of the blood.                    

(B) No physician, institution, or person acting under the direction or supervision of a physician shall be held liable in tort for the withdrawal of the blood unless the person is negligent in connection with the withdrawal of the blood or the blood is taken over the objections of the subject.                    

(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 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.              

(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the chemical test shall be made available to the person or to his or her attorney.        

History..Acts 1969, No. 106, §§ 1, 2; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; 1985, No. 169, § 1; A.S.A. 1947, §§ 75-1045, 75-1046; Acts 1989, No. 361, § 1; 2001, No. 561, §§ 9, 10; 2005, No. 886, § 1.

 


 

5-65-205. Refusal to submit.

(a) (1) 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.

(2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.

(b) The Office of Driver Services shall then proceed to suspend or revoke the driving privilege of the arrested person, as provided in § 5-65-402. The suspension shall be as follows:

(1) (A) (i) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood or breath.

(ii) (a) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the ignition interlock restricted license shall
be available immediately.

(b) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivision (b)(1)(A)(i) of this section if
the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance.

(iii) The restricted driving permit provision of § 5-65-120 does not apply to this suspension.

(B) The office, in addition to any other penalty, shall deny to that person the issuance of an operator's license until that person has been issued an ignition interlock restricted license for a period of six (6) months;

(2) Suspension for two (2) years, during which no restricted permit may be issued, for a second offense of refusing to submit to a chemical test of blood, breath, or urine for the purposes of determining the alcohol or controlled substance content of the person's blood or breath within five (5) years of the first offense;

(3) Revocation for three (3) years, during which no restricted permit may be issued, for the third offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood within five (5) years of the first offense; and

(4) Lifetime revocation, during which no restricted permit may be issued, for the fourth or subsequent offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood or breath within five (5) years of the first offense.

(c) [Repealed.]

(d) In order to determine the number of previous offenses to consider when suspending or revoking the arrested person's driving privileges, the office shall consider as a previous offense any of the following that occurred within the five (5) years immediately before the current offense:

(1) Any conviction for an offense of refusing to submit to a chemical test; and

(2) Any suspension or revocation of driving privileges for an arrest for refusing to submit to a chemical test when the person was not subsequently acquitted of the criminal charge.

(e) In addition to any other penalty provided for in this section:

(1) If the person is a resident without a license or permit to operate a motor vehicle in this state, the office shall deny to that person the issuance of a license or permit for a period of six (6) months for a first offense; and

(2) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the office shall deny to that person the issuance of a license or permit for a period of one (1) year.
History. Acts 1969, No. 106, § 1; 1971, No. 55, § 1; 1971, No. 306, § 1; 1973, No. 127, § 1; 1975, No. 660, § 1; 1983, No. 549, § 11; A.S.A. 1947, § 75-1045; Acts 1987, No. 277, § 1; 1995, No. 802, §§ 4, 5; 1999, No. 1077, § 15; 2001, No. 1501, § 3; 2003, No. 1779, § 2; 2005, No. 1234, § 1; 2007, No. 712, § 2; 2009, No. 359, § 4; 2009, No. 633, § 4, 2009, No. 748, § 30.

A.C.R.C. Notes. Acts 1995, No. 802, § 5, provided, in part, that this section “shall be effective for all arrests or offenses occurring on or after July 1, 1996.”
Publisher's Notes. Acts 1995, No. 802, § 5(a), is also codified, in part, as § 5-65-120(c).

Amendments. The 2001 amendment inserted “of the Revenue Division” in (b); inserted “or breath” in (b)(1), (b)(2) and (b)(4); added the last two sentences in (b)(1); added “within five (5) years of the first offense; and” in (b)(3); and made minor punctuation changes. The 2003 amendment redesignated former (b)(1) as present (b)(1)(A); substituted “the interlock restricted license shall be available immediately” for “the suspension time for which no restricted license shall be available shall be a minimum of ninety (90) days” in (b)(1)(A); and added (b)(1)(B). The 2005 amendment substituted “office allows the” for “court orders” in (b)(1)(A). The 2007 amendment added “any of the following that occurred within the five (5) years
immediately before the current offense” at the end of (d); in (d)(1), deleted “operating or being in actual physical control of a motor vehicle while intoxicated or in violation of § 5-65-103 or” preceding “refusing” and deleted “which occurred prior to July 1, 1996” following “test”; and substituted “for refusing to submit to a chemical test, when the person was not subsequently acquitted” for “for a violation of § 5-65-103 or violation of § 5-65-205(a) occurring on or after July 1, 1996, when the person was subsequently convicted” in (d)(2). The 2009 amendment by No. 359 added (b)(1)(A)(ii)(b). The 2009 amendment by No. 633, in (a), inserted (a)(2) and redesignated the remaining text accordingly. The 2009 amendment by No. 748 deleted (c).

Case Notes
Constitutionality.
Consciousness of Guilt.
Conviction.
Elements of Offense.
Intent.
No Citation.
Notice of Rights.
Prior Convictions.
Reasonable Cause.
Testing Options.

Constitutionality.
Admission into evidence of defendant's refusal to submit to a chemical test did not violate her Fifth Amendment right against self-incrimination. Weaver v. City of Fort Smith, 29 Ark. App. 129, 777 S.W.2d 867 (1989). Defendant who received a jury trial lacked standing to raise on appeal the issue that subsection (c) is unconstitutional because it does not provide for a jury trial. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993). Argument that subsection (c) of this section is facially unconstitutional, because it removes from the jury's province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated, was moot in case where the defendant waived his right to a jury trial. Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993). This section is not in violation of the due process or equal protection clauses. Cook v. State, 321
Ark. 641, 906 S.W.2d 681 (1995). Defendant had no standing to challenge the validity of subdivision (e)(1), since defendant was an Arkansas resident at the time of the offense, had not suffered injury as a result of this provision, nor did he belong to a class which is prejudiced by the law. O'Neill v. State, 322 Ark. 299, 908 S.W.2d 637 (1995). Under ARCrP 31.1 and 31.2 and Ark. Const., Art. 2, § 7, a defendant charged under this section has the right to a jury trial, and to the extent that subsection (c) prevents a defendant from having a jury determination, it is unconstitutional. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997).
Consciousness of Guilt.
Evidence of the refusal to submit to a chemical test can properly be admitted as circumstantial evidence showing consciousness of guilt of a defendant charged with offense of driving while intoxicated, and once admitted, the weight of this evidence is a question to be resolved by the trier of fact, which may also consider the circumstances surrounding the refusal and any explanation given for declining to take the test. Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990).
Conviction.
A defendant does not have to be convicted of DWI before he can be convicted of refusing to submit to a blood test. State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992).
Elements of Offense.
A violation occurs when the police officer has reasonable cause to believe the operator or person in actual physical control is intoxicated, the police officer directs the operator to submit to a blood test, and the operator refuses to do so. State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992).
Intent.
Since a conviction of refusal to submit to a chemical test can be based on any of three culpable mental states, this crime is a general intent crime for which voluntary intoxication is no defense. Menard v. State, 16 Ark. App. 219, 699 S.W.2d 412 (1985). Specific intent is not a necessary element of this crime; the mens rea may be satisfied by proof that the accused acted recklessly or knowingly, as well as by proof that the accused acted purposely. Menard v. State, 16 Ark. App. 219, 699 S.W.2d 412 (1985).
No Citation.
Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of bloodalcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under § 5-65-206(a)(2), a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication; based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in § 5-65-102(2), and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).
Notice of Rights.
Where defendant had refused to take an intoximeter test, the introduction of the refusal into evidence on the charge of driving while under the influence of intoxicants was not prejudicial even though defendant had not been advised that the arresting officer would have assisted him in securing an independent medical opinion. Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976). Where the evidence disclosed that the arresting officer did not advise the defendant driver that if he objected to the taking of his blood for a blood alcohol test, a breath or urine test might be taken at his own expense, did not mean that all testimony with regard to the test was inadmissible under the provisions of § 5-65-204(e); since the defendant did not have any test results introduced into evidence against him, he was not deprived of any statutory rights when the trial court permitted the arresting officer to testify that the defendant refused to submit to a blood alcohol test. Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984). If a Miranda warning is given in connection with an explanation of the implied consent law, the police officers must explicitly inform the suspect that the Miranda rights are not applicable to the decision of whether to take the test. Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986). The Miranda rights do not apply with respect to taking tests under the implied consent statute; for example, an accused does not have the right to contact an attorney before taking, or refusing to
take, the test. Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986).
Prior Convictions.
During the penalty phase of defendant's trial for driving while intoxicated in violation of § 5-65-103 and refusal to submit to a chemical test in violation of this section, the trial court did not err by admitting evidence of his prior convictions for refusal to submit to a chemical test; the evidence was relevant to his sentencing as either character evidence or aggravating circumstances. Williams v. State, 2009 Ark. App. 554, — S.W.3d — (2009).
Reasonable Cause.
Where defendant was stopped by police officers because of his driving and after the officers talked with defendant, defendant turned and shot officer and thereafter both officers and defendant were injured and taken to hospital and the treating physician ordered a blood test on defendant and such defendant was charged with assault with intent to kill, the provisions of §§ 5-65-202 — 5-65-205 with regard to the taking of a blood test had no application. Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975) (decision prior to 1983 amendment). Evidence held sufficient to find that there was ample cause for the officer to require defendant to submit to a breath test. Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). Where defendant was not arrested for any act committed while driving while intoxicated, nor was he involved in a fatal accident or stopped by an officer who had reasonable cause to believe that he was intoxicated, defendant was not deemed to have consented to take the blood alcohol test even though he was found in physical control of a vehicle while intoxicated. Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). Since defendant's parked car created a traffic hazard, the officers had specific, particular, and articulable reasons to suspect that a misdemeanor involving danger of injury to persons or property was being committed by the defendant; thus, the stop was reasonable under ARCrP 3.1, and the evidence of driving while intoxicated was admissible. Dacus v. State, 16 Ark. App. 222, 699 S.W.2d 417 (1985).
Testing Options.
Where the officer gave the motorist the option of submitting to either a urine or a blood test, the motorist could not properly refuse without penalty. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997).
Cited: St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998). 

 

5-65-206. Evidence in prosecution.

(a) In any criminal prosecution of a person charged with the offense of driving while intoxicated, the amount of alcohol in the defendant's breath or blood at the time or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance gives rise to the following:

(1) If there was at that time an alcohol concentration of four hundredths (0.04) or less in the defendant's blood, urine, breath, or other bodily substance, it is presumed that the defendant was not under the influence of intoxicating liquor; and

(2) If there was at the time an alcohol concentration in excess of four hundredths (0.04) but less than eight hundredths (0.08) by weight of alcohol in the defendant's blood, urine, breath, or other bodily substance, this fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

(b) The provisions in subsection (a) of this section shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question of whether or not the defendant was intoxicated.

(c) The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health.

(d) (1) (A) Except as provided in subsection (e) of this section, a record or report of a certification, rule, evidence analysis, or other document pertaining to work performed by the Office of Alcohol Testing of the Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained in the record or report in a court of this state, subject to the applicable rules of criminal procedure when duly attested to by the Director of the Office of Alcohol Testing of the Department of Health or his or her assistant, in the form of an original signature or by certification of
a copy.

(B) A document described in subdivision (d)(1)(A) of this section is selfauthenticating.

(2) However, the instrument performing the chemical analysis shall have been duly certified at least one (1) time in the last three (3) months preceding arrest, and the operator of the instrument shall have been properly trained and certified.

(3) Nothing in this section is deemed to abrogate a defendant's right to confront the person who performs the calibration test or check on the instrument, the operator of the instrument, or a representative of the office.

(4) The testimony of the appropriate analyst or official may be compelled by the issuance of a proper subpoena by the party who wishes to call the appropriate analyst or official given ten (10) days prior to the date of hearing or trial, in which case the record or report is admissible through the analyst or official, who is subject to cross-examination by the defendant or his or her counsel.

(e) When a chemical analysis of a defendant's blood, urine, or other bodily substance is made by the State Crime Laboratory for the purpose of ascertaining the presence of one

(1) or more controlled substances or any intoxicant, other than alcohol, in any criminal prosecution under § 5-65-103, § 5-65-303, or § 5-10-105, the provisions of § 12-12-313 govern the admissibility of the chemical analysis into evidence rather than the provisions of this section.
History. Acts 1957, No. 346, § 1; 1961, No. 215, § 1; 1969, No. 17, § 1; 1971, No. 578, § 1; 1983, No. 549, § 12; A.S.A. 1947, § 75-1031.1; Acts 1989, No. 928, § 1; 1999, No.462, § 1; 2001, No. 561, §§ 11, 12; 2005, No. 886, § 2; 2007, No.650, § 1; 2009, No. 748, § 31.

Publisher's Notes. As to methods of chemical analysis, see Publisher's Notes to § 5-65-204.

Amendments. The 2001 amendment rewrote (a) and (d). The 2005 amendment, in (d)(1)(A), inserted “Except as provided in subsection (e) of this section” and “or her”; and added (e). The 2007 amendment, in (d), substituted “right to confront” for “right of cross-examination” in (3),
and inserted “by the party who wishes to call the appropriate analyst or official” in (4). The 2009 amendment substituted “A document described in subdivision (d)(1)(A) of this section is” for “These documents are” in (d)(1)(B).

Research References

ALR.
Admissibility and sufficiency of extrapolation evidence in DUI prosecutions. 119 A.L.R.5th 379.
Ark. L. Rev.
Legislation — No. 215 — Weight to Be Given Evidence of Alcoholic Content of the Blood
Changed, 15 Ark. L. Rev. 437.
A Decade of Development in the Law of Criminal Procedure in Arkansas, 22 Ark. L. Rev. 669.
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.

Case Notes
In General.
Applicability.
Construction.
Certificate.
Cross-Examination of Operator.
Due Process.
Evidence.
—In General.
—Portable Breath Test.
—Refusal to Take Chemical Test.
Method of Analysis.
—In General.
—Compliance with Rules.
—Time.
Notice.

In General.
This section is not a criminal statute but rather a statute relating to admission of evidence in criminal prosecutions. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965).
Applicability.
It was error to apply this section to a civil proceeding for personal injuries arising out of automobile accident. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965); but see Judy v. McDaniel, 247 Ark. 409, 445 S.W.2d 722 (1969); Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981).
Construction.
The “person calibrating the machine” is the person testing the accuracy of the machine's measurements as outlined in the regulations, or the senior operator. Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995).
Certificate
This section does not require the state to produce in court the Arkansas Department of Health official who certifies the breathalyzer machine; it allows certification to be proven with the certificate itself. Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985). This section does not require proof of an installation certificate before test results may be admitted into evidence. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986). Subsections (c) and (d) of this section require that (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. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986).
Cross-Examination of Operator.
While subsection (d) does not require the State to introduce an installation certificate or a senior operator's testimony as a prerequisite to the introduction of chemical analysis test results, it does provide that the person who calibrates the machine and the person who operates it will be made
available for cross-examination by the defense upon reasonable notice to the prosecutor. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986); Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990). If defendant had desired to cross-examine senior operator, he had the burden of notifying the
prosecutor to make the operator available; he therefore could not complain of the State's failure to produce the senior operator or his certificate. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986). Admission of breathalyzer results was error where, prior to trial the defendant indicated that he
wished to cross-examine all persons responsible for the calibration and certification of the breathalyzer, but the state failed to make such persons available at trial; further, such error was prejudicial, notwithstanding that the jury might have convicted the defendant of operating a motor
vehicle while intoxicated based on the testimony of the arresting officer that the defendant had an odor of alcohol about him and failed two field-sobriety tests, without considering the improperly admitted testimony concerning the defendant's blood-alcohol content. White v. State, 73 Ark. App. 264, 42 S.W.3d 584 (2001).
Due Process.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Evidence.
Where a breath test performed within two hours of a traffic stop in accordance with subdivision (a)(2) of this section showed that defendant's blood alcohol level was more than 0.08, defendant's claim that his alcohol level would have still been rising at the time of the offense and could have been peaking at the time of the tests was unsupported by the evidence. The test results, along with evidence that he smelled of alcohol, crossed the center line, and failed sobriety tests was sufficient to support his conviction of driving while intoxicated pursuant to § 5-65-103(a). Hayden v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008). Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of bloodalcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under subdivision (a)(2) of this section, a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication; based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in § 5-65-102(2), and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for
refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).
—In General.
Examination of investigating police officer relative to intoximeter test and amount of alcohol allegedly consumed by defendant was not error where defendant himself testified that he had consumed a certain quanity of alcohol and cross-examination of investigating officer elicited testimony that officer did not arrest defendant but would have if the meter reading had been high enough. Judy v. McDaniel, 247 Ark. 409, 445 S.W.2d 722 (1969). Where there was testimony of witnesses that defendant acted drunk while in liquor store and further testimony of policeman that defendant was in wrong lane of traffic and weight of alcohol in defendant's blood was above amount for statutory presumption of intoxication it was not improper to overrule a motion for a directed verdict of acquittal. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). Expert testimony explaining the meaning of blood alcohol content is not required to prove intoxication. In fact, one may be convicted of driving while intoxicated without the use of a blood alcohol test. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988). Trial judge did not abuse his discretion in acquitting defendant where officer revealed that he did not know for certain what simulator he was using because the device used had lost its label, and was unable to testify that device had in fact been approved by the health department. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). State met proof required under Department of Health Regulation for Alcohol Blood Testing, § 3.20. Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992). Although this section does not require a machine operator's testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results, § 5-65-204 requires a blood sample to be collected in keeping with certain Board of Health methods in order for the test to be admissible in evidence. Caffey v. State, 43 Ark. App. 160, 862 S.W.2d 293 (1993). The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation, and proof by chemical test that the motorist's blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). Defendant's DWI conviction was improper where neither blood test resulted in blood alcohol levels in excess of the then legal limit, there was no testimony concerning speech pattern, appearance of defendant's eyes, any admission of his, or anything else that would support a finding of intoxication; in light of the fact that neither blood test resulted in blood alcohol levels in excess of the then legal limit, the court could not hold that defendant's case was one in which blood alcohol content and a mere allegation of an odor of intoxication was sufficient proof for DWI. Porter v. State, 82 Ark. App. 589, 120 S.W.3d 178 (2003), rev'd, 356 Ark. 17, 145 S.W.3d 376 (Ark. 2004). Defendant was not entitled to a presumption that he was not intoxicated based on the test that
showed his blood-alcohol content to be 0.05%; defendant failed to take into account the blood test that was drawn some 30 minutes after the wreck, which showed a blood-alcohol content of 0.0904 percent, and the trooper's testimony that defendant had been given fluids prior to the time
that the second blood sample was drawn. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (Ark.2004).
—Portable Breath Test.
The portable breath test is not one certified by the Department of Health and is therefore not admissible under this section. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). The results of a portable breath test, or what is sometimes called a roadside sobriety test, which are not admissible to prove a person is guilty of driving while intoxicated, are admissible when they would indicate a person is not guilty where the evidence is exculpatory, is crucial to the defense, and is sufficiently reliable to warrant admission. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). Since portable breathalyzer tests have not been certified by the Department of Health, admitting the evidence of the portable breathalyzer test was erroneous; however, the error was harmless. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Trial court erred in allowing the state to introduce evidence that defendant failed a portable breath test since the portable breathalyzer test had not been certified by the Arkansas Department of Health; a chemical analysis that has not been certified by the Department of Health is not admissible as evidence of driving while intoxicated under this section. Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003).
—Refusal to Take Chemical Test.
Evidence of the refusal to submit to a chemical test can properly be admitted as circumstantialevidence showing consciousness of guilt of a defendant charged with offense of driving while intoxicated, and once admitted, the weight of this evidence is a question to be resolved by the trier of fact, which may also consider the circumstances surrounding the refusal and any explanation given for declining to take the test. Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990).
Method of Analysis.
—In General.
It was error to admit testimony as to a urine analysis where there was no evidence analysis had been made according to a method approved by director of State Board of Health or Director of State Police. Jones v. Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965). Trial court did not abuse its discretion in admitting results of breathalyzer test over objections of defendant that state failed to show officer who administered test was competent operator of the
machine where officer briefly outlined operation of the machine, said that he had been to school to learn to operate it and that he had been operating it as part of his duties for a period of time. Smith v. State, 243 Ark. 12, 418 S.W.2d 627 (1967). Where intoximeter was certified during period in which test of driver was made and there was a certified machine operator present at such test although he did not conduct the test, there was sufficient foundation for test findings under this section to admit them into evidence in action for property damages and personal injury. Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981). Intoxilyzer satisfies the statutory requirement of being a “chemical analysis.” Dollar v. State, 287 Ark. 153, 697 S.W.2d 93 (1985).
—Compliance with Rules.
Where there was evidence that there was substantial compliance with Department of Health rules in the taking of a blood test to determine alcoholic content such evidence was admissible. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). Even certified operators may not ignore the Department of Health regulations on operation and maintenance of the chromatograph, if their testimony is to form the basis of a presumption of intoxication. Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ct. App. 1979). Failure to calibrate machine as required by Department of Health regulation held not to be substantial compliance with the rule, and the failure to abide by the regulation was prejudicial to the defendant. Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ct. App. 1979). Where the defendant was collectively observed by officers for 30 minutes prior to administering of breath test, fact that he was not observed for 20 minutes by the operator of machine as required by Department of Health standards was of no consequence since substantial compliance with
health department regulations is all that is required. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).
—Time.
Although Department of Health rules required that the sample of blood to determine intoxication be collected within two hours of an alleged offense and the testimony showed that the blood was drawn more than three hours thereafter, where it was also shown that the longer one waits to run the blood test, the more the percentage of alcohol decreases, no prejudicial error was demonstrated. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). This section does not provide an unqualified exclusionary rule of evidence for tests administered more than two hours after a person is arrested for driving while intoxicated but does provide for a presumption where the test is administered within two hours of arrest and the blood alcohol content is within a certain percentage. Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). This section is silent regarding situations in which breath test is taken two hours or more after the arrest, and the result reflects a blood alcohol content of 0.10% or more, for a delay beyond two hours could result in the blood alcohol content of an intoxicated person declining to the extent that it could no longer be detected by the testing mechanism, or, if detected it would register a smaller level and in such cases it would not be fair to apply either of the statutory provisions on presumptions. However, if the delay is two hours or longer and the test still shows a blood alcohol content of 0.10% or more, neither provision on presumptions is applicable, and the test is admissible. Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). Notice. The language of subdivision (d)(2) of this section requires that a new notice be given following an appeal to circuit court and without such notice being filed the state is under no duty to produce the witness. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).
Cited: Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969); Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976); St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ct. App. 1980); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982); Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983); Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Southwest Pipe & Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1986); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Ballew v. State, 305 Ark. 542, 809 S.W.2d 374 (1991); Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992); State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Smith v. State, 55 Ark. App. 97, 931 S.W.2d 792 (1996).
 

5-65-207. Alcohol testing devices.

(a) (1) Any instrument used to determine the alcohol content of the breath for the purpose of determining if the person was operating a motor vehicle while intoxicated or with an alcohol concentration of eight hundredths (0.08) or more shall be so constructed that the analysis is made automatically when a sample of the person's breath is placed in the instrument, and without any adjustment or other action of the person administering the analysis.

(2) The instrument shall be so constructed that the alcohol content is shown by visible digital display on the instrument and on an automatic readout.

(b) Any breath analysis made by or through the use of an instrument that does not conform to the requirements prescribed in this section is inadmissible in any criminal or civil proceeding.

(c) (1) The State Board of Health may adopt appropriate rules and regulations to carry out the intent and purposes of this section, and only instruments approved by the board as meeting the requirements of this section and regulations of the board shall be used for making the breath analysis for determining alcohol concentration.

(2) (A) The Department of Health specifically may limit by its rules the types or models of testing devices that may be approved for use in Arkansas for the purposes set forth in this section.

(B) The approved types or models shall be specified by manufacturer's name and model.

(d) Any law enforcement agency that conducts alcohol testing shall maintain full compliance with this section.
History. Acts 1985, No. 533, §§ 1-3; A.S.A. 1947, §§ 75-1046.1 — 75-1046.3; Acts 1989, No. 419, § 1; 2001, No. 561, § 13; 2007, No. 827, § 81.

Amendments. The 2001 amendment redesignated former (a) as present (a)(1) through (a)(2) and made related changes; in (a)(1), deleted “machine or” preceding “instrument” and “or blood of any person by analysis of the breath of the person” preceding “for the purpose of” and substituted “an alcohol concentration of eight-hundredths (0.08)” for “a blood alcohol content of one-tenth of one percent (0.10%)”; substituted “instrument” for “machine” in (a)(2); deleted “blood” preceding “alcohol” in (a)(2), (c)(1) and (d); substituted “an instrument” for “a machine or instrument” in (b); redesignated former (c) as present (c)(1) through (c)(2); in (c)(1), deleted “machines or” preceding “instruments” and substituted “concentration” for “content”; and made minor stylistic changes throughout. The 2007 amendment substituted “shall maintain full compliance with this section” for “shall be in full compliance with the provisions of this section by June 28, 1989” in (d).

Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.

Case Notes
Full Compliance.

Full Compliance.

The legislature intended to provide a time lag between the effective date of the act (June 28,1985) enacting this section and full compliance. Hence, introduction of breathalyzer test into evidence was proper even though machine did not have the visual digital readout required by this section, since full compliance with this section by all law enforcement agencies which conduct blood alcohol testing is not required until June 28, 1989. Cothran v. State, 291 Ark. 401, 725 S.W.2d 548 (1987).
Cited: City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006).
 

5-65-208. Collisions — Testing required.

(a) (1) When the driver of a motor vehicle is involved in an accident resulting in loss of human life or when there is reason to believe death may result, in addition to a penalty established elsewhere under state law, a chemical test of the driver's blood, breath, or urine shall be administered to the driver, even if fatally injured, to determine the presence of and percentage of concentration of alcohol or the presence of drugs, or both, in the driver's body.

(b) (1) The law enforcement agency that investigates the collision, the physician in attendance, or any other person designated by state law shall order the chemical test as soon as practicable.

(2) (A) The medical personnel who conducted the chemical test under subsection (a) of this section of the driver's blood, breath, or urine shall forward the results of the chemical test to the Department of Arkansas State Police, and the department shall establish and maintain the results of the analyses required by subsection (a) of this section in a database.

(B) The information in the database shall reflect the number of fatal motor vehicle accidents in which:

(i) Alcohol was found to be a factor, with the percentage of alcohol concentration involved;

(ii) Drugs were found to be a factor, listing the class of drugs found and their amounts; and

(iii) Both alcohol and drugs were found to be factors, with the percentage of alcohol concentration involved, and listing the class of drugs so found and
their amounts.

(c) The results of the analyses required by this section shall be reported to the department and may be used by state and local officials for statistical purposes that do not reveal theidentity of the deceased person or for any law enforcement purpose, including prosecution for the violation of any law.
History. Acts 1995, No. 711, § 2; 1995, No. 1105, § 2; 2003, No. 950, § 1; 2009, No. 423, § 1.

A.C.R.C. Notes. References to “this subchapter” in §§ 5-65-201 — 5-65-207 may not apply to this section which was enacted subsequently. References to “this chapter” in subchapters 1 and 2 may not apply to this section which was enacted subsequently.

Amendments. The 2003 amendment, in (a), substituted “or urine shall” for “or urine must,” “even if fatally injured” for “including those fatally injured” and “drugs, or both in the person's body” for “drugs in such person's body.” The 2009 amendment, in (a), redesignated the text and deleted “and there exists probable cause to believe that the driver is guilty of a violation of the state's law prohibiting driving while under the influence” following “death may result”; in (b)(1), substituted “law enforcement agency that investigates” for “police officer who responds to” and deleted “who was present when the death
occurred” following “state law”; added “or for any law enforcement purpose, including prosecution for the violation of any law” in (c); and made related and minor stylistic changes.

Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Driving While Intoxicated,
26 U. Ark. Little Rock L. Rev. 367.
5-65-301. Title.
This subchapter may be known and cited as the “Underage Driving Under the Influence
Law” or the “Underage DUI Law”.
History. Acts 1993, No. 863, § 1.
Case Notes
Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

5-65-302. Definitions.
As used in this subchapter:

(1) “Influence” means being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant, or any combination of an alcoholic beverage or similar intoxicant, to such a degree that the driver's reactions, motor skills, and judgment are altered or diminished, even to the slightest scale, and the underage driver, therefore, due to inexperience and lack of skill, constitutes a danger of physical injury or death to himself or herself and other motorists or pedestrians; and

(2) “Underage” means any person who is under twenty-one (21) years of age and therefore may not legally consume alcoholic beverages in Arkansas.
History. Acts 1993, No. 863, § 2.
 

5-65-303. Conduct proscribed.

(a) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or similar intoxicant.

(b) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle if at that time there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in the underage person's breath or blood as determined by a chemical test of the underage person's blood or breath or other bodily substance.
History. Acts 1993, No. 863, § 3; 2001, No. 561, § 14.

Amendments. The 2001 amendment substituted “an alcohol concentration … persons breath or” for “one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) by weight of alcohol in the person's” in (b).

Research References
ALR.
Validity, construction, and operation of school “zero tolerance” policies towards drugs, alcohol, or
violence. 117 A.L.R.5th 459.
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.

Case Notes
Evidence.
Indictment or Information.
Lesser-Included Offenses.
Sentencing.

Evidence.

Where defendant was driving erratically, the police officer detected an odor of alcoholic beverages in defendant's car, defendant failed at least one field sobriety test and tested at 0.07% blood/alcohol a little more than an hour after his arrest, and there was no opportunity for him to consume alcoholic beverages between time of arrest and time of testing, the total circumstances were enough to support a judgment of conviction for driving a car while under the influence of an alcoholic beverage. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995).
Indictment or Information.
Municipal court erred and prejudiced defendant charged with driving while intoxicated (DWI) when it changed the charge to driving under the influence (DUI) on its own motion, because DUI is not a lesser-included offense of DWI and altering the charge violated § 5-65-107; and the circuit court erred in trying and convicting defendant of DUI following his appeal from the municipal court, a judgment it was not authorized to render under § 16-19-1105. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Lesser-Included Offenses.
Driving under the influence (DUI) is not a lesser-included offense of driving while intoxicated, in that DUI requires an additional element of proof of the defendant's age and a different level of intoxication. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).
Sentencing.
Jail sentence for violating this section was illegal on its face because the trial court lacked authority to impose it. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
Cited: State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995).
 

5-65-304. Seizure, suspension, and revocation of license — Temporary permits.

(a) At the time of arrest for violating § 5-65-303, the arresting law enforcement officer shall seize the motor vehicle operator's license of the underage person arrested and issue to the underage person a temporary driving permit as provided by § 5-65-402.

(b) (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under the provisions of § 5-65-402 and the arrested underage person shall have the same right to hearing and judicial review as provided under § 5-65-402.

(2) The suspension or revocation shall be as follows:

(A) Suspension for ninety (90) days for the first offense of violating § 5-65-303;
(B) Suspension for one (1) year for the second offense of violating § 5-65-303; and
(C) (i) Revocation for the third or subsequent offense of violating § 5-65-303 occurring while the person is underage.

(ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.

(c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person's driving privileges, the office shall consider as a previous offense:

(1) Any conviction for violating § 5-65-103 or § 5-65-303; and
(2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-103 or § 5-65-303 when the person was not subsequently acquitted of the criminal charge.

(d) (1) (A) (i) The office shall charge a fee to be calculated as provided under subdivision (d)(2)(B) of this section for reinstating a driver's license suspended because of a violation of § 5-65-303 or § 5-65-310.

(ii) Forty percent (40%) of the revenues derived from this fee shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.

(B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by each separate occurrence of an offenses resulting in an administrative suspension order under § 5-65-303 unless the administrative suspension order has been removed because:

(i) The person has been found not guilty of the offense by a circuit court or district court; or
(ii) A de novo review of the administrative suspension order by the office results in the removal.

(C) The fee under this section is supplemental to and in addition to any fee imposed under § 5-65-119, § 5-65-310, § 27-16-508, or § 27-16-808.

(2) As used in this subsection, “occurrence” means each separate calendar date when an offense or offenses take place.
History. Acts 1993, No. 863, § 4; 1999, No. 1077, § 16; 2005, No. 1992, § 2; 2007, No. 712, § 3.

Amendments. The 2005 amendment inserted the subdivision (1)(A) designation in (d); substituted “to be calculated as provided under subdivision (d)(2) of this section” for “of twentyfive dollars ($25.00)” in present (d)(1)(A); redesignated former (d)(2) as present (d)(1)(B); and added (d)(2). The 2007 amendment deleted former (c)(1) and (c)(2); redesignated former (c)(3) and (c)(4) as present (c)(1) and (c)(2); substituted “5-65-103 or § 5-65-303” for “5-65-303 or § 5-65-310 prior to July 30, 1999” in (c)(1); and substituted “5-65-103 or § 5-65-303, when the person was not subsequently acquitted” for “5-65-303 or § 5-65-310 occurring on or after July 30, 1999, when the person was subsequently convicted” in (c)(2).

Case Notes

Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

5-65-305. Fines.

(a) Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be fined:

(1) No less than one hundred dollars ($100) and not more than five hundred dollars ($500) for the first offense;

(2) No less than two hundred dollars ($200) and not more than one thousand dollars ($1,000) for the second offense occurring underage; and

(3) No less than five hundred dollars ($500) and not more than two thousand dollars ($2,000) for the third or subsequent offense occurring underage.

(b) For the purpose of determining an underage person's fine under this subchapter, an underage person who has one (1) or more previous convictions or suspensions for a violation of § 5-65-103 or § 5-65-205 is deemed to have a conviction for a violation of this subchapter for each conviction for driving while intoxicated.
History. Acts 1993, No. 863, § 5; 1999, No. 1077, § 17.

Case Notes
Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

5-65-306. Public service work.

(a) Any underage person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-303 or § 5-65-310 shall be ordered by the court to perform public service work of the type and for the duration as deemed appropriate by the court.

(b) The period of community service shall be for:

(1) No less than thirty (30) days for a second offense of violating § 5-65-303; and
(2) No less than sixty (60) days for a third or subsequent offense of violating § 5-65-303.
History. Acts 1993, No. 863, § 6; 1999, No. 1077, § 18.

Case Notes
Constitutionality.

Constitutionality.
The appellate court did not consider the constitutionality of the public service penalty in this section because the appellate court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995).
Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

 5-65-307. Alcohol and driving education program.

(a) (1) (A) Any person who has his or her driving privileges suspended, revoked, or denied for violating § 3-3-203, § 5-65-310, or § 5-65-303 is required to complete an alcohol and driving education program for underage drivers as prescribed and approved by the Office of Alcohol and Drug Abuse Prevention or an alcoholism treatment program licensed by the Office of Alcohol and Drug Abuse Prevention, or both, in addition to any other penalty provided in this chapter.

(B) If during the period of suspension or revocation in subdivision (a)(1)(A) of this section the underage person commits an additional violation of § 3-3-
203 or § 5-65-303, the underage person is also required to complete an approved alcohol and driving education program or alcoholism treatment program for each additional violation.

(2) The Office of Alcohol and Drug Abuse Prevention shall approve only those programs in alcohol and driving education that are targeted at the underage driving group and are intended to intervene and prevent repeat occurrences of driving under the influence or driving while intoxicated.

(3) (A) (i) The alcohol and driving education program may collect a program fee of up to one hundred twenty-five dollars ($125) per enrollee to offset program costs.

(ii) An underage person ordered to complete an alcohol and driving education program or an alcoholism treatment program under this section may be
required to pay, in addition to the costs collected for the program, a fee of up to twentyfive dollars ($25.00) to offset the additional costs associated with reporting requirements under this subchapter.

(B) An approved alcohol and driving education program shall report monthly to the Office of Alcohol and Drug Abuse Prevention all revenue derived from
these fees.

(b) Prior to reinstatement of a driver's license suspended or revoked under this subchapter, the driver shall furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under subdivision (a)(1) of this section.

(c) The Office of Alcohol and Drug Abuse Prevention may promulgate rules reasonably necessary to carry out the purposes of this section regarding the approval and monitoring of the alcohol and driving education programs.

(d) (1) (A) A person whose license is suspended or revoked for violating § 5-65-303 or § 5-65-310 shall:

(i) Both:

(a) Furnish proof of attendance at and completion of the alcohol and driving education program or alcoholism treatment program required under
subdivision (a)(1) of this section and at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driver's license; and

(b) Pay any fee for reinstatement required under § 5-65-119, § 5-65-304, or § 5-65-121; or

(ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.

(2) Even if a person has filed a de novo petition for review pursuant to § 5-65-402, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the denovo review in circuit court has occurred.

(3) (A) A person suspended under this subchapter may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court, but is not entitled to any refund of fees paid if the charges are dismissed or if the person is acquitted of the charges.

(B) A person who enrolls in an alcohol education program is not entitled to any refund of fees paid if the person is subsequently acquitted.

(e) Any alcohol and driving education program shall remit the fees imposed under this section to the Office of Alcohol and Drug Abuse Prevention.
History. Acts 1993, No. 863, § 7; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4; 1999, No. 1077, § 19; 2003, No. 1462, § 3; 2005, No. 1768, § 4; 2007, No. 251, § 3; 2009, No. 946, § 2.

Amendments. The 2003 amendment inserted “or an alcoholism treatment program, or both” in (a)(1); substituted “seventy-five ($75.00)” for “fifty dollars ($50.00)” in present (a)(3)(A)(i); and inserted “or an alcoholism treatment program” in present (a)(3)(A)(ii). The 2005 amendment redesignated former (a)(1) as present (a)(1)(A); substituted “Bureau … Human Services” for “Highway Safety Program” in present (a)(1)(A); substituted “bureau” for “Highway Safety Program” in (a)(2), (a)(3)(B) and (c); added (a)(1)(B); substituted “one hundred twenty-five dollars ($125)” for “seventy-five dollars ($75.00)” in (a)(3)(A)(i); added “or programs required under subdivision (a)(1) of this section” in (b) and (d)(1)(A)(i)(a ); substituted “circuit, district, or city court” for “municipal or circuit court” in (d)(3)(A); and added (e). The 2007 amendment substituted “the Office of Alcohol and Drug Abuse Prevention” for “the
bureau” throughout the section; in (a)(1)(A), substituted “Any person” for “Any underage person,” inserted “§ 3-3-203, § 5-65-310, or,” substituted “Division of Behavioral Health Services” for “Division of Health,” inserted “licensed by the Office of Alcohol and Drug Abuse Prevention,” and substituted “this chapter” for “this subchapter”; inserted “§§ 3-3-203 or” in (a)(1)(B); substituted “monthly” for “semiannually” in (a)(3)(B); deleted “or alcoholism treatment program” following “driving education program” in (e); and made related changes. The 2009 amendment, in (d)(1)(A)(i), inserted “and at a victim impact panel as provided in § 5-65-121” in (d)(1)(A)(i)(a), inserted “or § 5-65-121” in (d)(1)(A)(i)(b), and made related changes.
Case Notes
Cited
: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

5-65-308. No probation prior to adjudication of guilt.

(a) (1) Section 16-93-301 et seq. allows a circuit court judge, district court judge, or city court judge to place on probation a first offender who plead guilty or nolo contendere prior to an adjudication of guilt, and upon successful completion of probation, the circuit court judge, district court judge, or city court judge may discharge the accused without a court adjudication of guilt and expunge the record.

(2) (A) No circuit court judge, district court judge, or city court judge may utilize the provisions of § 16-93-301 et seq. in an instance in which an underage person is charged with violating § 5-65-303.

(B) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subdivision (a)(2)(A) of this section, in addition to the mandatory penalties required for a
violation of § 5-65-303 a circuit court judge, district court judge, or city court judge may utilize probationary supervision solely for the purpose of monitoring compliance with his or her orders and require an offender to pay a reasonable fee in an amount to be established by the circuit court judge, district court judge, or city court judge.

(b) Any magistrate or judge of a court shall keep or cause to be kept a record of any violation of this subchapter presented to that court and shall keep a record of any official action by that court in reference to the violation of this subchapter, including, but not limited to, a record of any finding of guilt, plea of guilty or nolo contendere, or judgment of acquittal, and the amount of fine and other sentence.

(c) Within thirty (30) days after sentencing a person who has been found guilty or pleaded guilty or nolo contendere on a charge of violating any provision of this subchapter, any magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty or pleaded guilty or nolo contendere, and the abstract shall be certified by the person so required to prepare it to be true and correct.

(d) The abstract shall be made upon a form furnished by the office and shall include:
(1) The name and address of the party charged;
(2) The number, if any, of the driver's license of the party charged;
(3) The registration number of the vehicle involved;
(4) The date of hearing;
(5) The plea;
(6) The judgment; and
(7) The amount of the fine and other sentence, as the case may be.
History. Acts 1993, No. 863, § 8; 2005, No. 1768, § 5.

Amendments. The 2005 amendment substituted “circuit, district, and city courts” for “circuit and municipal courts” in (a)(1); redesignated former (a)(2) as present (a)(2)(A); substituted “circuit, district, or city judge” for “circuit or municipal judge” in present (a)(2)(A); and added (a)(2)(B).
 

5-65-309. Implied consent.

(a) Any underage person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:

(1) The underage person is arrested for any offense arising out of an act alleged to have been committed while the underage person was driving while under the influence or driving while there was an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood;

(2) The underage person is involved in an accident while operating or in actual physical control of a motor vehicle; or

(3) The underage person is stopped by a law enforcement officer who has reasonable cause to believe that the underage person, while operating or in actual physical control of a motor vehicle, is under the influence or has an alcohol concentration of two-hundredths (0.02) but less than eight-hundredths (0.08) in his or her breath or blood.

(b) Any underage person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and a chemical test may be administered subject to the provisions of § 5-65-203.
History. Acts 1993, No. 863, § 9; 2001, No. 561, § 15.

Amendments. The 2001 amendment inserted “breath or” in the introductory language in (a) and (a)(3); substituted “an alcohol concentration … or her breath or” for “one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) of alcohol in the person's” in (a)(1); and substituted “an alcohol concentration … eight-hundredths (0.08)” for “one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) of alcohol” in (a)(3).

Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.
Case Notes
Cited
: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
 

5-65-310. Refusal to submit.

(a) (1) If an underage 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 § 5-65-309, no chemical test shall be given, and the underage person's driver's license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the underage person from whom the driver's license was seized a temporary driving permit, as provided by § 5-65-402.

(2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.

(b) (1) The Office of Driver Services shall suspend or revoke the driving privileges of the arrested underage person under § 5-65-402.

(2) The office shall suspend the underage person's driving privileges as follows:
(A) Suspension for ninety (90) days for a first offense under this section;
(B) Suspension for one (1) year for a second offense under this section; and
(C) (i) Revocation for the third or subsequent offense occurring while the person is underage.

(ii) Revocation is until the underage person reaches twenty-one (21) years of age or for a period of three (3) years, whichever is longer.

(c) In order to determine the number of previous offenses to consider when suspending or revoking the arrested underage person's driving privileges, the office shall consider as a previous offense:

(1) Any conviction for violating § 5-65-310; and

(2) Any suspension or revocation of driving privileges for an arrest for a violation of § 5-65-310 when the person was not subsequently acquitted of the criminal charge.

(d) In addition to any other penalty provided for in this section, if the underage person is a resident without a license or permit to operate a motor vehicle in this state:

(1) The office shall deny to that underage person the issuance of a license or permit for a period of six (6) months for a first offense; and

(2) For a second or subsequent offense by an underage resident without a license or permit to operate a motor vehicle, the office shall deny to that underage person the issuance of a license or permit for a period of one (1) year.

(e) When an underage nonresident's privilege to operate a motor vehicle in this state has been suspended, the office shall notify the office of issuance of that underage person's nonresident motor vehicle license of action taken by the office.

(f) (1) (A) The office shall charge a reinstatement fee to be calculated as provided under subdivision (f)(1)(B) of this section for reinstating a driver's license suspended or revoked for a violation of this section.

(B) The reinstatement fee is calculated by multiplying twenty-five dollars ($25.00) by the number of offenses resulting in an administrative suspension order under § 5-65-310 unless the administrative suspension order has been removed because:

(i) The person has been found not guilty of the offense by a circuit court or district court; or

(ii) The office has entered an administrative suspension order.

(C) The fee under subdivision (f)(1)(A) of this section is supplemental to and in addition to any fee imposed by § 5-65-119, § 5-65-304, § 27-16-508, or § 27-16-808.

(2) Forty percent (40%) of the revenues derived from the reinstatement fee under this subsection shall be deposited into the State Treasury as special revenues and credited to the Public Health Fund to be used exclusively for the Blood Alcohol Program of the Department of Health.
History. Acts 1993, No. 863, § 10; 1999, No. 1077, § 20; 2005, No. 1992, § 5; 2007, No.712, § 4; 2009, No. 633, § 5.

Amendments. The 2005 amendment inserted the subdivision (1)(A) designation in (f); in present (f)(1)(A), substituted “reinstatement fee to be calculated as provided under this subdivision (f)(1)(A)” for “fee of of twenty-five dollars ($25.00)”; added (f)(1)(B) and (f)(1)(C); and, in (f)(2), substituted “the reinstatement fee under this subsection (f)” for “this fee.” The 2007 amendment deleted former (c)(1) and (c)(2); redesignated former (c)(3) and (c)(4) as
present (c)(1) and (c)(2); substituted “violating § 5-65-310” for “violating § 5-65-303 or § 5-65-310 prior to July 30, 1999” in (c)(1); and substituted “violation of § 5-65-310 when the person was not subsequently acquitted” for “violation of § 5-65-303 or § 5-65-310 occurring on or after July 30,
1999, when the person was subsequently convicted” in (c)(2). The 2009 amendment, in (a), inserted (a)(2), redesignated the remaining text accordingly, and made a minor punctuation change.

Case Notes
Constitutionality.
—Standing.

Constitutionality.
—Standing.

Where testimony at trial established that defendant voluntarily submitted to a breathalyzer test, there was no finding that he violated this section, thus, defendant lacked standing to warrant consideration of this section's constitutionality on appeal. Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).
 

5-65-311. Relationship to other laws.

(a) A penalty prescribed in this subchapter for underage driving under the influence is in addition to any other penalty prescribed by law for the offense under another law of the State of Arkansas.

(b) For the purposes of this subchapter, there is no presumption, as there is found in § 5-65-206, that an underage person is not under the influence of an intoxicating substance, such as alcohol or a similar intoxicant, if the underage person's alcohol concentration is four hundredths (0.04) or less.

(c) The following are the same for a chemical test or instrument used for testing breath or blood alcohol concentration under the Omnibus DWI Act, § 5-65-101 et seq:

(1) The administration of a chemical test for breath or blood alcohol;
(2) The instrument used to administer the chemical test;
(3) The procedure used to calibrate and maintain the instrument; and
(4) The use of the chemical test results as evidence.

(d) If there is evidence of an alcohol concentration of more than four-hundredths (0.04) but less than eight-hundredths (0.08) in an underage person's blood, breath, or other bodily substance, this fact does not preclude the underage person from being prosecuted for driving while intoxicated under the Omnibus DWI Act, § 5-65-101 et seq.
History. Acts 1993, No. 863, § 11; 2001, No. 561, § 16.

Amendments. The 2001 amendment substituted “four hundredths (0.04) of one percent” for “five hundredths (0.05) of one percent” in (b); in (c), inserted “breath or” and deleted “machines and” preceding “instruments” and “and machines” preceding “and instruments”; and substituted “an
alcohol concentration … eight-hundredths (0.08)” for “more than one-twentieth of one percent (0.05%) but less than one-tenth of one percent (0.10%) by weight of alcohol” in (d).

Research References
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L.
Rev. 429.
Case Notes
Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

 

5-65-401. Definitions.

   As used in this subchapter:        

  (1) “Disqualification” means a prohibition against driving a commercial motor vehicle;              

  (2) “Immobilization” means revocation or suspension of the registration or license plate of a motor vehicle; and              

   (3) “Sworn report” means a signed and written statement of a certified law enforcement officer, under penalty of perjury, on a form provided by the Director of the Department of Finance and Administration.              

History..Acts 1999, No. 1077, § 21.

5-65-402. Surrender of license or permit to arresting officer.

(a)

 (1)

  (A) At the time of arrest for violating § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5), the arrested person shall immediately surrender his or her license, permit, or other evidence of driving privilege to the arresting law enforcement officer.                    

  (B) The arresting law enforcement officer shall seize the license, permit, or other evidence of driving privilege surrendered by the arrested person or found on the arrested person during a search.                    

   (C)

   (i) If a juvenile, as defined in the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., is arrested for violating § 3-3-203(a) or § 5-27-503(a)(3), the arresting officer shall issue the juvenile a citation to appear for a juvenile intake with a juvenile intake officer.                          

  (ii) The arresting officer shall forward a copy of the citation and the license, permit, or other evidence of the driving privilege to the juvenile office before the scheduled juvenile intake.                          

 (iii) Juveniles subject to the jurisdiction of the circuit court under § 9-27-301 et seq. shall not be subject to this section, except as provided in this subdivision (a)(1).                          

 (2)

(A)

 (i) If the license, permit, or other evidence of driving privilege seized by the arresting law enforcement officer has not expired and otherwise appears valid to the arresting law enforcement officer, the arresting law enforcement officer shall issue to the arrested person a dated receipt for that license, permit, or other evidence of driving privilege on a form prescribed by the Office of Driver Services.                          

 (ii) This receipt shall be recognized as a license and authorizes the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days.                          

  (B)

     (i) The receipt form shall contain and shall constitute a notice of suspension, disqualification, or revocation of driving privileges by the office, effective in thirty (30) days, notice of the right to a hearing within twenty (20) days, and if a hearing is to be requested, as notice that the hearing request is required to be made within seven (7) calendar days of the notice being given.                          

 (ii) The receipt shall also contain phone numbers and the address of the office and inform the driver of the procedure for requesting a hearing.                          

  (C) If the office is unable to conduct a hearing within the twenty-day period, a temporary permit shall be issued and is valid until the date of the hearing.                    

   (D)

    (i) The seized license, permit, or other evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the arresting law enforcement officer and shall be submitted by mail or in person to the office or its designated representative within seven (7) days of the issuance of the receipt.                          

    (ii) The failure of the arresting law enforcement officer to timely file the sworn report does not affect the authority of the office to suspend, disqualify, or revoke the driving privilege of the arrested person.                          

    (3)

    (A) Any notice from the office required under this subchapter that is not personally delivered shall be sent by certified mail and is deemed to have been delivered on the date when postmarked and shall be sent to the last known address on file with the office.                    

    (B) Refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the office does not constitute nonreceipt of notice.                    

    (C) For any notice that is personally delivered, the person shall be asked to sign a receipt acknowledging he or she received the required notice.                    

     (4)

     (A) The office or its designated official shall suspend, revoke, or disqualify the driving privilege of an arrested person or any nonresident driving privilege of an arrested person when it receives a sworn report from the arresting law enforcement officer that he or she had reasonable grounds to believe the arrested person:                    

     (i) Was under twenty-one (21) years of age and purchased or was in possession of intoxicating liquor, wine, or beer in violation of § 3-3-203(a);                          

     (ii) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law in violation of § 5-27-503(a)(3); or                          

     (iii) Had been operating or was in actual physical control of a motor vehicle in violation of § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) and the sworn report is accompanied by:                          

    (a) A written chemical test report or a sworn report that the arrested person was operating or in actual physical control of a motor vehicle in violation of § 5-65-103, § 5-65-303, or § 27-23-114; or                                

     (b) A sworn report that the arrested person refused to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the arrested person's blood in violation of § 5-65-205, § 5-65-310, or § 27-23-114(a)(5).                                

      (B) The suspension, disqualification, or revocation shall be based as follows:                    

     (i) The driving privileges of any person violating § 5-65-103 shall be suspended or revoked as provided by § 5-65-104;                          

     (ii) The driving privileges of any person violating § 5-65-205(a) shall be suspended or revoked as provided by § 5-65-205(b);                          

     (iii) The driving privileges of any person violating § 5-65-303 shall be suspended or revoked as provided by § 5-65-304(b);                          

     (iv) The driving privileges of any person violating § 5-65-310(a) shall be suspended or revoked as provided by § 5-65-310(b);                          

     (v) The driving privileges of any person violating § 27-23-114(a)(1) or § 27-23-114(a)(2) shall be disqualified as provided by § 27-23-112;                          

      (vi) The driving privileges of any person violating § 27-23-114(a)(5) shall be disqualified as provided by § 27-23-112;                          

     (vii) The driving privileges of any person violating § 3-3-203(a) shall be suspended, revoked, or disqualified as provided by § 3-3-203(c); and                          

     (viii) The driving privileges of any person violating § 5-27-503(a)(3) shall be suspended, revoked, or disqualified as provided by § 5-27-503(d).                          

     (5) In addition to any other penalty provided for in this section, if the arrested person is a resident without a license or permit to operate a motor vehicle in this state:              

    (A) The office shall deny to that arrested person the issuance of a license or permit for a period of six (6) months for a first offense; and                    

      (B) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the office shall deny to that arrested person the issuance of a license or permit for a period of one (1) year.                    

     (6)

      (A)

      (i) If the arrested person is a nonresident, the arrested person's privilege to operate a motor vehicle in Arkansas shall be suspended in the same manner as that of a resident.                          

       (ii) The office shall notify the office that issued the nonresident's motor vehicle license of the action taken by the office.                          

       (B) When the arrested person is a nonresident without a license or permit to operate a motor vehicle, the office shall notify the office of issuance for that arrested person's state of residence of action taken by the office.                    

       (7)

        (A) Upon the written request of a person whose privilege to drive has been revoked, denied, disqualified, or suspended, or who has received a notice of revocation, suspension, disqualification, or denial by the arresting law enforcement officer, the office shall grant the person an opportunity to be heard if the request is received by the office within seven (7) calendar days after the notice of the revocation, suspension, disqualification, or denial is given in accordance with this section or as otherwise provided in this chapter.                    

       (B) A request described in subdivision (a)(7)(A) of this section does not operate to stay the revocation, suspension, disqualification, or denial by the office until the disposition of the hearing.                    

    (8)

     (A) The hearing shall be before the office or its authorized agent, in the office of the Revenue Division of the Department of Finance and Administration nearest the county where the alleged event occurred for which the person was arrested, unless the office or its authorized agent and the arrested person agree otherwise to the hearing's being held in some other county or that the office or its authorized agent may schedule the hearing or any part of the hearing by telephone and conduct the hearing by telephone conference call.                    

    (B) The hearing shall not be recorded.                    

  (C) At the hearing, the burden of proof is on the state and the decision shall be based on a preponderance of the evidence.                    

   (D) The scope of the hearing shall cover the issues of whether the arresting law enforcement officer had reasonable grounds to believe that the person:                    

    (i) Had been operating or was in actual physical control of a motor vehicle or commercial motor vehicle while:                          

    (a) Intoxicated or impaired;                                

     (b) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 5-65-103(b);                                

     (c) The blood alcohol concentration of a person under twenty-one (21) years of age was equal to or greater than the blood alcohol concentration prohibited by § 5-65-303; or                                

      (d) The person's blood alcohol concentration measured by weight of alcohol in the person's blood was equal to or greater than the blood alcohol concentration prohibited by § 27-23-114;                                

    (ii) Refused to submit to a chemical test of the blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person's blood and whether the person was placed under arrest;                          

   (iii) Was under twenty-one (21) years of age and purchased or was in possession of any intoxicating liquor, wine, or beer; or                          

    (iv) Was under twenty-one (21) years of age and attempted to purchase an alcoholic beverage or use a fraudulent or altered personal identification document for the purpose of purchasing an alcoholic beverage illegally or other material or substance restricted to adult purchase or possession under existing law.                          

     (E)

      (i) The office or its agent at the hearing shall consider any document submitted to the office by the arresting law enforcement agency, document submitted by the arrested person, and the statement of the arrested person.                          

      (ii) The office shall not have the power to compel the production of documents or the attendance of witnesses.                          

      (F)

       (i) If the revocation, suspension, disqualification, or denial is based upon a chemical test result indicating that the arrested person was intoxicated or impaired and a sworn report from the arresting law enforcement officer, the scope of the hearing shall also cover the issues as to whether:                          

       (a) The arrested person was advised that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the chemical test result reflected an alcohol concentration equal to or in excess of the amount by weight of blood provided by law or the presence of other intoxicating substances;                                

       (b) The breath, blood, or urine specimen was obtained from the arrested person within the established and certified criteria of the Department of Health;                                

        (c) The chemical testing procedure used was in accordance with existing rules; and                                

       (d) The chemical test result in fact reflects an alcohol concentration, the presence of other intoxicating substances, or a combination of alcohol concentration or other intoxicating substance.                                

       (ii) If the revocation, suspension, disqualification, or denial is based upon the refusal of the arrested person to submit to a chemical test as provided in § 5-65-205, § 5-65-310, or § 27-23-114(a)(5), reflected in a sworn report by the arresting law enforcement officer, the scope of the hearing shall also include whether:                          

      (a) The arrested person refused to submit to the chemical test; and                                

       (b) The arrested person was informed that his or her privilege to drive would be revoked, disqualified, suspended, or denied if the arrested person refused to submit to the chemical test.                                

   (b) After the hearing, the office or its authorized agent shall order the revocation, suspension, disqualification, or denial to be rescinded or sustained and shall then advise any person whose license is revoked, suspended, or denied that he or she may request a restricted permit as otherwise provided for by this chapter.        

  (c)

  (1)

  (A) A person adversely affected by the hearing disposition order of the office or its authorized agent may file a de novo petition for review within thirty (30) days in the circuit court in the county where the offense took place.                    

 (B) A copy of the decision of the office shall be attached to the petition.                    

 (2)

  (A) The filing of a petition for review does not stay or place in abeyance the decision of the office or its authorized agent.                    

  (B) If the circuit court issues an order staying the decision or placing the decision in abeyance, the circuit court shall transmit a copy of the order to the office in the same manner that convictions and orders relating to driving records are sent to that office.                    

  (C)

    (i) The circuit court shall hold a final hearing on the de novo review within one hundred twenty (120) days after the date that the order staying the decision or placing the decision in abeyance is entered.                          

    (ii) The circuit court may conduct the final hearing by telephone conference with the consent of the parties.                          

   (3) An administrative hearing held pursuant to this section is exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq.              

   (4)

    (A) On review, the circuit court shall hear the case de novo in order to determine based on a preponderance of the evidence whether a ground exists for revocation, suspension, disqualification, or denial of the person's privilege to drive.                    

     (B) If the results of a chemical test of blood, breath, or urine are used as evidence in the suspension, revocation, or disqualification of the person's privilege to drive, then the provisions of § 5-65-206 shall apply in the circuit court proceeding.                    

   (d)

     (1) Any decision rendered at an administrative hearing held under this section shall have no effect on any criminal case arising from any violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5).              

    (2) Any decision rendered by a court of law for a criminal case arising from any violation of § 3-3-203(a), § 5-27-503(a)(3), § 5-65-103, § 5-65-205, § 5-65-303, § 5-65-310, § 27-23-114(a)(1), § 27-23-114(a)(2), or § 27-23-114(a)(5) shall affect the administrative suspension, disqualification, or revocation of the driver's license as follows:              

   (A) A plea of guilty or nolo contendere or a finding of guilt by the court has no effect on any administrative hearing held under this section;                    

    (B)

    (i) An acquittal on the charges or a dismissal of charges serves to reverse the suspension, disqualification, or revocation of the driver's license suspended or revoked under this section.                          

   (ii) The office shall reinstate the person's driver's license at no cost to the person, and the charges shall not be used to determine the number of previous offenses when administratively suspending, disqualifying, or revoking the driving privilege of any arrested person in the future; and                          

    (C) The office shall convert any initial administrative suspension or revocation of a driver's license for violating § 5-65-103 to a suspension or revocation for violating § 5-65-303, if the person is convicted of violating § 5-65-303 instead of § 5-65-103.                    

 (e) Any person whose privilege to drive has been denied, suspended, disqualified, or revoked shall remain under the denial, suspension, disqualification, or revocation and remain subject to penalties as provided in § 5-65-105 until such time as that person applies for, and is granted by the office, reinstatement of the privilege to drive.        

 (f) The administrative suspension, disqualification, or revocation of a driver's license as provided for by this section is supplementary to and in addition to a suspension, disqualification, or revocation of a driver's license that is ordered by a court of competent jurisdiction for an offense under §§ 5-64-710, 5-65-116, and 27-16-914, or any other traffic or criminal offense in which a suspension, disqualification, or revocation of the driver's license is a penalty for the violation.        

  (g) [Repealed.]        

  (h)

  (1)

   (A) A person whose license is suspended or revoked pursuant to this section shall:                    

   (i) Both:                          

   (a) Furnish proof of attendance at and completion of the alcoholism treatment program, alcohol education program, or alcohol and driving education program required by § 5-65-104(b)(1) or § 5-65-307(a)(1) and, if applicable, at a victim impact panel as provided in § 5-65-121 before reinstatement of his or her suspended or revoked driver's license; and                                

   (b) Pay any fee for reinstatement required under § 5-65-119, § 5-65-304, or, if applicable, § 5-65-121; or                                

    (ii) Furnish proof of dismissal or acquittal of the charge on which the suspension or revocation is based.                          

       (B) An application for reinstatement shall be made to the office.                    

     (2) Even if a person has filed a de novo petition for review pursuant to subsection (c) of this section, the person is entitled to reinstatement of driving privileges upon complying with this subsection and is not required to postpone reinstatement until the disposition of the de novo review in circuit court has occurred.              

   (3) A person suspended under this section may enroll in an alcohol education program prior to disposition of the offense by the circuit court, district court, or city court, but is not entitled to any refund of a fee paid if the charge is dismissed or if the person is acquitted of the charge.              

(i) Except as provided in subsection (a) of this section, this section shall not apply to juveniles subject to § 9-27-301 et seq.        

History..Acts 1999, No. 1077, § 21; 2003, No. 541, §§ 2-5; 2005, No. 1535, § 2; 2005, No. 1768, § 6; 2007, No. 922, § 2; 2009, No. 748, § 32; 2009, No. 946, § 3; 2009, No. 956, § 2, 3.

5-65-403. Notice and receipt from arresting officer.

   (a) At the time of arrest for violating § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2), the arresting law enforcement officer shall provide written notice to the arrested person:        

 (1) That if the arrested person's driving privileges have been suspended, disqualified, or revoked for violating § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) in the previous five (5) years, the registration of any motor vehicle owned by the arrested person is suspended effective in thirty (30) days;              

 (2) Of the right to a hearing within twenty (20) days; and              

   (3) That if a hearing is to be requested the hearing request is required to be made within seven (7) calendar days of the notice being given.              

 (b) The receipt shall also contain phone numbers and the address of the Office of Driver Services and inform the arrested person of the procedure for requesting a hearing.        

(c) If the office is unable to conduct a hearing within the twenty-day period, a temporary permit shall be issued and is valid until the date of the hearing.        

(d)

 (1) The seized license, permit, or other evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the arresting law enforcement officer and shall be submitted by mail or in person to the Director of the Department of Finance and Administration or his or her designated representative within seven (7) days of the issuance of the receipt.              

 (2) The failure of the arresting law enforcement officer to timely file the sworn report does not affect the authority of the office to suspend the registration of any motor vehicle owned by the arrested person.              

(e) Any notice from the office required under this section that is not personally delivered shall be sent as provided by § 5-65-402.        

 (f)

  (1) If the arrested person is a nonresident, the arrested person's motor vehicle registration in Arkansas shall be suspended in the same manner as that of a resident.              

  (2) The office shall notify the office that issued the nonresident's motor vehicle registration of the action taken by the office.              

 (g) The hearing shall be held by the office at the conclusion of any hearing under § 5-65-402 and the scope of the hearing is limited to:        

   (1) Determining if the arrested person's driving privileges had been suspended, revoked, or disqualified for violation of § 5-65-103, § 5-65-303, § 27-23-114(a)(1), or § 27-23-114(a)(2) in the five (5) years prior to the current offense; and              

   (2) Determining if any motor vehicle is licensed or registered in the arrested person's name as either owner or co-owner of the motor vehicle.              

 (h)

   (1)

   (A) A person adversely affected by the hearing disposition order of the office or its authorized agent may file a de novo petition for review within thirty (30) days in the circuit court in the county where the offense took place.                    

    (B) The filing of a petition for review does not stay or place in abeyance the decision of the office or its authorized agent.                    

    (2) An administrative hearing held pursuant to this section is exempt from the Arkansas Administrative Procedure Act, § 25-15-201 et seq.              

     (3) On review, the circuit court shall hear the case de novo in order to determine whether, based on a preponderance of the evidence, a ground exist for suspension of the person's motor vehicle registration.              

 (i) The suspension ordered shall be equal to the suspension of driving privileges ordered under § 5-65-402 or one (1) year, whichever is longer, but shall not exceed five (5) years.        

(j)

 (1)

  (A) Upon determination that a person is completely dependent on the motor vehicle for the necessities of life, the Director of the Department of Finance and Administration may grant a restricted registration to a family member or co-owner of any immobilized motor vehicle.                    

   (B) A restricted registration is not valid for use by the person whose driving privileges have been suspended or revoked.                    

   (2) Operation of a motor vehicle in a manner inconsistent with the restricted registration or license plate has the same effect as operating an unlicensed motor vehicle.              

(k) If the director orders immobilization of a motor vehicle, notice of immobilization shall be sent by first class mail to any persons, other than the arrested person, listed as an owner or co-owner of the immobilized motor vehicle in the records of the Office of Motor Vehicle.        

History..Acts 1999, No. 1077, § 21.

 

 

 
 
     

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