King v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: DUDLEY
• Citation: King v. State, 804 S.W.2d 360, 304 Ark. 592 (Ark. 1991)
• Decision Date: 25 February 1991
• Docket Number: No. CR,CR
• Parties: Joe W. KING, Appellant, v. STATE of Arkansas, Appellee. 90-282.

Page 360

804 S.W.2d 360

304 Ark. 592

Joe W. KING, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-282.

Supreme Court of Arkansas.

Feb. 25, 1991.

Robert Meurer, Searcy, for appellant.

J. Brent Standridge Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The appellant was driving his car in the City of Beebe when an auxiliary officer stopped him for a traffic violation. The auxiliary policeman saw that appellant appeared to be intoxicated, so he radioed his supervising officer and administered a field sobriety test. The supervising officer arrived, arrested appellant, and took him to the police station. There, he observed appellant for the required twenty minutes, and gave him a breathalyzer test. The result was a blood alcohol content of .22%.

The appellant moved to suppress the results of the field sobriety test and breathalyzer test because, he alleged, the supervising officer did not meet the minimum standards set by the Commission on Law Enforcement Standards and Training. The trial court refused to suppress the evidence. We affirm that ruling.

Ark.Code Ann. § 12-9-303(a) and (b) (1987) provides that the authority of an auxiliary police officer is derived from his supervision by a certified officer, but if the supervising officer does not meet the standards for a certified officer, the auxiliary officer shall have no authority except that of a private citizen. Ark.Code Ann. § 12-9-108 (1987) provides that the failure of a regular police officer to meet the qualifications set by the Commission on Law Enforcement Standards and Training requires that his official actions "be held as invalid."

Appellant argues that section 1002(1), (2), and (4) of the Standards requires that a police officer's personnel file contain, among other things, a high school diploma or a G.E.D. certificate and a report from a physician stating that the officer is in good physical health. He then contends that the trial court erred in holding that the supervising officer's personnel file contained these documents, and that the trial court erred in refusing to suppress the evidence.

We need not determine whether the trial court was clearly erroneous in his finding of fact that the supervising officer's personnel file contained a diploma and physical report, because, even if it did not, the supervising officer was grandfathered in by statute. Ark.Code Ann. § 12-9-106(e)(1) (1987) provides that law enforcement officers serving under full-time permanent appointment on December 31, 1977, are not required to meet the standards as long as they are continuously employed. The supervising officer in this case testified he had been employed continuously as a full-time police officer for the past fourteen years, or since 1976, at various police departments. On cross-examination he did state there had been one interval of three weeks between the time he worked for the Cities of Stuttgart and England, but he was not asked whether he was on some type of leave during this period. Thus, it cannot be said that his testimony that he had been continuously employed as a policeman was in error. See Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). In addition, even if appellant were not grandfathered in, we would not reverse for refusal to apply the exclusionary rule under those circumstances. State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991).

Appellant next argues that a prior conviction for driving while under the influence should not have been used to enhance his sentence. He contends that the certified copy of the prior conviction...