Weatherford v. State, CR

• Decision Date: 01 July 1985
• Docket Number: No. CR,CR
• Parties: Ronald WEATHERFORD, Appellant, v. STATE of Arkansas, Appellee. 85-7.
• Court: Arkansas Supreme Court

Page 605

692 S.W.2d 605

286 Ark. 376

Ronald WEATHERFORD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-7.

Supreme Court of Arkansas.

July 1, 1985.

Guy Jones, Jr., Conway, for appellant.

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

HAYS, Justice.

Ronald Weatherford appeals from his conviction of driving while intoxicated in violation of the Omnibus DWI Act, Act 549 of 1983. Our jurisdiction is derived from Rule 29(1)(c). He bases his appeal on five arguments.

I

Weatherford urges it was error to admit the results of a intoxilyzer test because his right to an additional blood or urine test was not explained to him. The record shows the arresting officer told Weatherford he was entitled to a blood or urine test at his own expense at the Conway Memorial Hospital and that the officer would assist him in obtaining the additional test. Weatherford's response was that he wanted his physician in Little Rock to perform the test and when that request was refused he said, "Forget the whole thing." ¹

We cannot sustain the argument, as the officer was not obliged to assist the accused by having a test performed in Little Rock. The provision for assistance in the act does not extend to transporting the accused to another locale, when there is no showing that facilities at the place of arrest are inadequate to perform the necessary tests.

II

Weatherford complains that exhibits 1, 2, and 3 of the state should not have been admitted because they are not authenticated in accordance with Ark.Stat.Ann. § 27-2505 (Repl.1979). The exhibits are, respectively, a certificate of the Arkansas Department of Health that the intoxilyzer used by the Conway Police Department is approved for use in determining blood alcohol, a certificate that Thomas Lee Smith of the Conway Police Department is qualified and authorized to perform tests by using the intoxilyzer, and a certificate that the Conway Police Department is a Certified Installation for the performance of blood alcohol analysis in accordance with existing laws and regulations. Each certificate is signed by the Director of the Blood Alcohol Program and her signature is notarized.

Ark.Stat.Ann. § 27-2505 deals with the introduction generally of domestic and foreign documents admissible for any purpose in litigation. The Compiler's Notes suggest the statute has been superseded by the adoption of Rule 44 of the Arkansas Rules of Civil Procedure, which covers the identical subject matter. The Reporter's Notes to Rule 44 affirm that. Neither Rule 44 nor Ark.Stat.Ann. § 27-2505 has application here, as Ark.Stat.Ann. § 75-1031.1(C) (Supp.1983) sets out how the chemical analysis of blood shall be made and approved by the Arkansas State Board of Health and provides that the certificates of the Department shall be admissible per se. There is no proof this section was not complied with.

III

Weatherford also maintains the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), were not given. The state concedes no warnings were given, but argues that since no incriminating statements were introduced, the omission of the Miranda warnings is harmless error, at best.

When one is arrested for the alleged commission of a misdemeanor traffic offense, and questioned by police officers, his responses are not admissible if the warnings outlined in Miranda v. Arizona are not first given. That was the holding in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). However, the distinction between Berkemer and the case before us is that in Berkemer, statements of the accused that he had drunk two beers and smoked several joints of marijuana shortly before being stopped were received in evidence, notwithstanding the lack of Miranda warnings. Berkemer's conviction was necessarily based in part on his own statements, as the intoxilyzer did not detect any alcohol in his system. In contrast to Berkemer, Weatherford was not asked what he had had to drink and nothing was offered by the state in the form of incriminating statements in establishing the charge of driving while intoxicated. True, he was asked to perform field sobriety tests, such as walking heel to toe, touching his nose with his index fingers and the like. And while such tests, if poorly performed, have incriminating consequences, they are not the sort of self-incrimination which the Fifth Amendment is intended to prevent. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965). The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize the defendant from providing the state with evidence of a testimonial or communicative nature. Schmerber v. California, supra.

In Schmerber, Mr. Justice Holmes is quoted:

Another objection is based upon an extravagant extension of the Fifth Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibitions of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical and moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Holt v. United States, 218 U.S. 245 (1910), at 252 [31 S.Ct. 2, at 6, 54 L.Ed. 1021].

IV

Next, Weatherford claims his motion for a mistrial should have been granted because of a remark by the trial court which constitutes, he believes, a comment on the evidence in violation of our constitution, Article 7, Section 23. We must reject the contention.

During trial the sufficiency of notice by the police that Weatherford was entitled to an additional chemical test came into question, and whether the requisite assistance in obtaining such a test was offered to him. Defense counsel moved to strike the intoxilyzer test administered by the police officer and asked the court to instruct the jury to disregard it. The motion was overruled and the court told the jury:

The court: Alright, based on the evidence that I have heard at this time, ladies and gentlemen, let me admonish you this--and I wouldn't make this admonishment at this time, Mr. Jones, except that you are requesting me to do so.

The testimony is that when the Defendant was told that it was to be at his own expense and could not be at Little Rock at his own physician, he withdrew his request for a blood test. And that's the state of the record at this time, and I will tell you the issue of the blood test being given or not given is not an issue in this case, and you are to disregard any testimony about it unless it develops sometime later that it may be. Now, proceed on. (R. 95)

Weatherford submits the words can only be interpreted as telling the jury to disregard the testimony of Mr. and Mrs. Weatherford. We disagree with that contention, as the incident occurred during the testimony of Officer Thomas Smith, who performed the breath test, and before either Mr. or Mrs. Weatherford had testified. We read the trial court's comment as an attempt to sum up the proof at that point in the trial. The remarks were not inaccurate, as it was undisputed at that point that Weatherford had asked only to have the blood test performed in Little Rock, which, as we have said, was not required under the act. The trial judge's comment clearly left open the...