Hughes v. State

• Decision Date: 29 January 1986
• Docket Number: No. CA,CA
• Citation: 702 S.W.2d 817,17 Ark.App. 34
• Parties: Larry Dean HUGHES, Appellant, v. STATE of Arkansas, Appellee. CR 85-151.
• Court: Arkansas Court of Appeals

Page 817

702 S.W.2d 817

17 Ark.App. 34

Larry Dean HUGHES, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-151.

Court of Appeals of Arkansas Division I.

Jan. 29, 1986.

Young & Finley by Dale W. Finley, Russellville, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

Appellant was convicted of operating a motor vehicle while under the influence of alcohol. He was arrested after his automobile left the road and went through a chain link fence. Officers on the scene observed that appellant's eyes were red and watery, his face was flushed, he looked sleepy, was unsteady on his feet, and had an odor of alcohol about him. Appellant was taken to the Pope County Detention Center where a breathalyzer test was performed which indicated a blood alcohol content of .11%. He was tried by a jury, found guilty of a second offense of DWI, sentenced to thirty (30) days in jail, assessed a fine and costs totaling $1,000 and had his driver's license suspended for one year.

Appellant first argues that the court erred in admitting the results of the breathalyzer test into evidence since Officer Dilbeck, who calibrated the machine, testified that he did not know whether the test solution he used had been obtained from the Arkansas Department of Health or a private pharmaceutical company; did not know when the solution was purchased or how long it had been in the Pope County sheriff's office; and did not know whose possession the solution had been in before the breathalyzer test, who had access to the bottle after the seal was broken, or how many calibrations had been made using the same solution.

We do not think these matters make the test results inadmissible. The officer testified that the solution was supposed to be a .10% solution--not off more than .01%--that it tested .09% on the breathalyzer and that this established the reliability of both the testing solution and the machine. The appellant attempts to analogize the rule requiring that a chain of custody be established in blood-testing cases to the present case, but the evidence reveals that the situation here is entirely different. The content of a blood sample is obviously not known before the test, while the alcohol content of a calibrating solution is known before the test. So, when the calibrating solution is tested with results as expected, this tends to prove the integrity of the solution and the machine. Officer Dilbeck was certified by the Arkansas Department of Health as an operator of the breathalyzer and we think his testimony about the alcoholic content of the solution used in the calibration of the machine was admissible. In Armstrong v. State, 5 Ark.App. 96, 633 S.W.2d 51 (1982), it was argued that since there was no evidence that the substance dispensed by a pharmacist had been chemically analyzed, the state had failed to prove the appellant had fraudulently obtained a controlled substance. After reviewing some cases, we said:

In the instant case we have the testimony of a licensed pharmacist who testified that he filled the prescription bottle from his larger container of Tussionex. Obviously he relied upon the representations of the supplier of the larger container in giving his opinion, but this is in keeping with Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977), and is authorized by Uniform Evidence Rule 703.

Appellant cites Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ark.App.1979), as requiring strict compliance with health department regulations regarding calibration of the breathalyzer before the results will be admissible at trial. In that case, although the regulations required daily calibration of the machine, the...