Ark. Code Ann. § 5-65-202 (2026)

Research References

U. Ark. Little Rock L.J.

Survey — Criminal Procedure, 10 U. Ark. Little Rock L.J. 567.

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

Case Notes

Constitutionality.

Blood alcohol test results are admissible under the implied consent law; this law is valid and does not violate the provision against self-incrimination. Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984).

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's constitutional challenge to subdivision (a)(3) of this section and § 5-65-205(a)(2) was rejected where the statutes did not clearly and unmistakably conflict with the holding of Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Burr v. State, 2016 Ark. App. 182, 487 S.W.3d 395 (2016).

In view of defendant's arrest on reasonable cause, the reduced expectation of privacy as a motorist and an arrestee, the minimal intrusiveness of a breath test, and the compelling interest in combating drunk driving, the implied-consent statute did not clearly and unmistakably violate the Fourth Amendment. Burr v. State, 2016 Ark. App. 182, 487 S.W.3d 395 (2016).

Circuit court erred in finding that a blood draw did not implicate the Fourth Amendment where defendant's refusal to submit to a blood test pursuant to the pre-2017 version of this section would have resulted in the imposition of criminal penalties, and thus, the version of this section in effect before the 2017 amendment was unconstitutional as applied to defendant. Dortch v. State, 2018 Ark. 135, 544 S.W.3d 518 (2018) (decision under prior law).

In General.

Motorists give an implied consent to chemical tests for alcoholic content of blood. Mercer v. State, 256 Ark. 814, 510 S.W.2d 539 (1974).

Purpose.

The intent of the General Assembly in passing this section was to mandate alcohol testing for a person stopped by a law enforcement officer when that officer has reasonable cause to believe the driver is drunk. Parsons v. State, 313 Ark. 224, 853 S.W.2d 276 (1993).

Additional Tests.

Requiring that a person be advised of his right to an additional test, under the circumstances outlined in subsection (b) of this section would render that provision meaningless. It is clear that a person incapable of refusing or consenting to being tested for blood alcohol levels need not be advised of his right to additional tests, because such a literal application of § 5-65-204(e) (now (d)) would lead to absurd consequences. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989).

Admonition Forms.

Arkansas does not have a statutorily prescribed implied-consent admonition form. Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993).

Assistance of Counsel.

There is no constitutional right to counsel in connection with this chemical test. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Defendant's conviction was affirmed even though he claimed that he was confused by the conduct of the law enforcement officers, in that after being given his Miranda rights, he was then read his rights under the implied consent statute, and he was told that he did not have a right to consult with his attorney prior to taking the breathalyzer test. Carroll v. State, 35 Ark. App. 141, 814 S.W.2d 913 (1991).

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); Huitt v. State, 39 Ark. App. 69, 837 S.W.2d 482 (1992).

The Court of Appeals held that Gober v. State, 22 Ark. App. 121, 736 S.W.2d 18 (1987), was wrongly decided and overruled Gober to the extent that it holds that a DWI conviction is a prerequisite to a conviction for refusing a blood alcohol test pursuant to § 5-65-202(a)(1) (Supp. 1989). Huitt v. State, 39 Ark. App. 69, 837 S.W.2d 482 (1992).

Evidence.

Arrest is not necessarily a prerequisite before blood alcohol content, determined pursuant to sample, would be admissible in evidence. Mercer v. State, 256 Ark. 814, 510 S.W.2d 539 (1974) (decision under prior law).

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 under prior law).

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).

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 Ark. R. Crim. P. 3.1, and the evidence of driving while intoxicated was admissible. Dacus v. State, 16 Ark. App. 222, 699 S.W.2d 417 (1985) (decision under prior law).

Conviction for violation of this section upheld where defendant failed the field sobriety tests and refused to submit to a breathalyzer test, and where two police officers smelled intoxicants on defendant; the evidence was sufficient for police to have a reasonable belief that defendant was intoxicated. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).

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).

Operation or Control of Vehicle.

The phrase “while operating or in actual physical control of a motor vehicle” sets forth a condition precedent to a violation of the implied-consent law as set forth in subsection (a)(3); thus, a defendant was entitled to a reversal of his conviction under this section where he was not in actual physical control of a vehicle when he refused to take a breath test. Stephenson v. City of Fort Smith, 71 Ark. App. 190, 36 S.W.3d 754 (2000).

Reasonable Cause.

This section does not expressly require that an officer develop a reasonable belief of intoxication before a stop is made. Parsons v. State, 313 Ark. 224, 853 S.W.2d 276 (1993).

The time a police officer must develop a reasonable belief of intoxication is only at the time of arrest. Parsons v. State, 313 Ark. 224, 853 S.W.2d 276 (1993).

Police officer's observations of the smell of alcohol and defendant's bloodshot eyes, coupled with the fact that defendant refused a portable breath test and admitted to the officer that he had been drinking, were sufficient to constitute reasonable cause that he was intoxicated; the trial court's ruling denying defendant's motion to suppress the breathalyzer results was not clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757 (2003).

Search Warrant.

In a driving while intoxicated case, a trial court did not err by denying a motion to suppress the results of a blood-alcohol test taken pursuant to a search warrant because the chemical test that may not be given under subsection (a) of § 5-65-205 after the accused refuses to submit to a chemical test is limited to the warrantless test authorized by this section. Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650 (2015).

Submission to Testing.

A defendant need not be apprised of the consequences of refusing to submit to a chemical test. Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993).

No U.S. Const. amend. IV violation occurred when a trial court denied defendant's motion to suppress evidence of defendant's refusal to take a breath test because defendant's consent to testing was implied and no warrant was required for the search. Tiller v. State, 2014 Ark. App. 431, 439 S.W.3d 705 (2014).

Circuit court erred in finding that defendant had voluntarily consented to the blood draw where it did not hold a suppression hearing or consider evidence regarding the voluntariness of consent. Dortch v. State, 2018 Ark. 135, 544 S.W.3d 518 (2018) (decision under prior law).

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).

Violation.

A violation of this section occurs when a police officer has reasonable cause to believe the operator or person in actual physical control of a motor vehicle 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).

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); Anable v. Ford, 653 F. Supp. 22 (W.D. Ark. 1985); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990); Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992).