Grable v. State

Decision Date01 May 1989
Docket NumberNo. CR,CR
Citation298 Ark. 489,769 S.W.2d 9
PartiesJames GRABLE, Appellant, v. STATE of Arkansas, Appellee. 89-68.
CourtArkansas Supreme Court

Robert Meurer, Searcy, for appellant.

David B. Eberhard, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, James Grable, seeks reversal of his conviction of driving while intoxicated on the ground that the officer who arrested him did not meet mandatory qualifications to make the arrest, and thus the charge against him was invalid and the evidence presented through him was inadmissible. The state argues Grable failed to show the charge by the officer was the only one levied against him and the regulations cited by Grable were not introduced in evidence and cannot be considered. The state also argues there was compliance or substantial compliance with the regulations. We hold compliance with the regulations, of which we may take judicial notice, was mandatory, and the State had not complied with them. The charge was invalid, and Grable was not required to present evidence that it was the only charge against him. The arrest and charge were invalid, and the evidence resulting from the arrest should not have been admitted. We, therefore, reverse and dismiss the conviction.

Grable was arrested at 1:35 a.m., January 1, 1988, for speeding and driving while intoxicated (first offense) by Officer Carson of the Judsonia Police Department. He was found guilty of both offenses in the Judsonia City Court and appealed to the circuit court where he was convicted only of DWI. Officer Carson testified that Grable's breath smelled of intoxicants at the time of the arrest, Grable's eyes were bloodshot, and he failed the field sobriety and portable breath test. He transported Grable to Searcy where an intoxilyzer test was administered by a Searcy Police Department patrolman.

1. Judicial notice

Courts may take judicial notice of the regulations of state agencies. Seubold v. Fort Smith Special School Dist., 218 Ark. 560, 237 S.W.2d 884 (1951); State v. Martin, 134 Ark. 420, 204 S.W. 622 (1918). The cases cited by the state hold courts may not take judicial notice of municipal ordinances and regulations, and thus they are inapplicable here. E.g., Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979) (municipal civil service regulations); Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987) (municipal ordinance).

2. The regulations

Qualifications of candidates for police positions in Arkansas are set by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. By Ark.Code Ann. §§ 12-9-104 and 12-9-106 (1987), the general assembly has empowered the commission to establish minimum selection and training standards and general qualifications of law enforcement personnel.

Commission on Law Enforcement Standards and Training Regulations, as abstracted, provide § 1002(2)(c). Every officer employed by a law enforcement unit shall be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record.

§ 1002(2)(i). Every officer employed by a law enforcement unit shall be examined by a licensed psychiatrist or a licensed psychologist, who, after examination, makes recommendations to the employing agency.

§ 1002(4). The minimum standards for employment or appointment must be completed before employment eligibility is established. Employment eligibility should depend upon the results and recommendations received by the investigator and examiners.

Arkansas Code Ann. § 12-9-108(a) (1987) provides:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

Subsequent sub-sections contain exceptions for disaster or emergency situations and permit issuance of parking violation citations by law enforcement personnel who have not met the standards.

3. Compliance or substantial compliance

The evidence showed that Officer Carson's file contained neither a record of a completed fingerprint check nor a record of the required psychological examination. The state argues that there was compliance with the fingerprint requirement because the search had been initiated. It argues substantial compliance with the psychological testing requirement because Carson had undergone such a test in connection with previous employment by another city and because he completed the requirement within 30 days of the arrest in this case. No evidence of the previous psychological test was in Carson's Judsonia file.

We reject the argument of compliance with the fingerprint check because § 1002(4) of the regulations makes it clear that the minimum standards must be "completed" before employment.

We reject the substantial compliance argument with respect to the psychological testing requirement because of the emphatic language of Ark.Code Ann. § 12-9-108(a) which makes clear the intent of the general assembly that we are not to tolerate anything but strict compliance with the regulations. We note in passing that if we were to adopt a substantial compliance exception the obvious intent of the general assembly to improve the quality of law enforcement by enacting laws requiring standards would never be achieved.

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22 cases
  • Chambers v. State, 01-921
    • United States
    • Arkansas Court of Appeals
    • March 6, 2002
    ...and that it is not necessary to formally introduce the regulations into evidence for the court to do so. See, e.g., Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) (citing State v. Martin and Lipe, 134 Ark. 420, 204 S.W. 622 (1918) and Seubold v. Fort Smith Special Sch. Dist., 218 Ark. 5......
  • Moore v. State, CR
    • United States
    • Arkansas Supreme Court
    • November 5, 1990
    ...a direct result of this statute, we have held that a citation which was issued by an unqualified officer was invalid. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The charging instrument for the felonies now on appeal was a prosecutor's information, not an officer's citation, so we a......
  • Cherry v. State, CR
    • United States
    • Arkansas Supreme Court
    • June 11, 1990
    ...did not meet the qualifications set forth by the Arkansas Commission on Law Enforcement Standards and Training. See Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The appellant claims that the testimony offered against him by these officers should have been stricken under Ark.Code Ann.......
  • Moore v. State
    • United States
    • Arkansas Supreme Court
    • December 21, 1990
    ...be invalid. In construing the statute, we have held that the "charge" made by an unqualified officer would be invalid. Grabel v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The charges asserted against the appellant were by prosecutor's information, not an officer's citation. We therefore are......
  • Request a trial to view additional results
1 books & journal articles
  • Administrative hearings
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...that the officer requesting the chemical test was properly qualified. See Mitchell v. State , 769 S.W.2d 18 (Ark. 1989); Grable v. State, 769 S.W.2d 9 (Ark. 1989) (an officer who does not meet the statutory qualifications is not “qualified” to make an arrest, thereby voiding any drunk drivi......

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