Ark. Code Ann. § 5-65-204 (2026)

Research References

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Criminal Procedure, 17 U. Ark. Little Rock L.J. 449.

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

Case Notes

Construction.

Section 5-65-103, as amended in 2001, sets the legal limit for blood alcohol concentration and must be read in conjunction with subdivision (a)(1) of this section, which defines the alcohol concentration computation; hence, where defendant stipulated that his blood alcohol concentration as revealed in breathalyzer test results was 0.109, his conviction for per se violation of § 5-65-103(b) (see now (a)(2)) was affirmed on appeal. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004).

Applicability.

This section is limited to those tests ordered either by a police officer or a defendant in connection with a criminal charge relating to sobriety. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).

The requirements set out in this section need not be met when the blood test is not ordered by the police or the defendant for use as evidence at trial, but has been ordered by hospital personnel for their own use in connection with the treatment of a patient. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).

Additional Tests.

Where there was other evidence of intoxication which made, of itself, a question of fact, the introduction of evidence that the defendant was not advised of his right to have a person of his choice, in addition to the officer giving the test, to administer the breatholator test furnished no basis for the granting of the motion to dismiss the charge of driving a motor vehicle while under the influence of intoxicants. Small v. City of Little Rock, 253 Ark. 7, 484 S.W.2d 81 (1972).

Where defendant had refused to take an intoximeter test, the introduction of the refusal into evidence on the charge of driving while under the influence of intoxicants was not prejudicial even though defendant had not been advised that the arresting officer would have assisted him in securing an independent medical opinion. Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976).

Blood alcohol level breathalyzer test results were admissible in a prosecution for driving while intoxicated where the arresting officers advised the defendant that he could request a different type of test, but the defendant did not request a different test, even though the officers failed to advise him that he had the right to have a qualified person administer additional tests of his choosing. Doyle v. Jackson County Nat'l Bank, 284 Ark. 303, 681 S.W.2d 371 (1984).

Where the evidence disclosed that the arresting officer did not advise the defendant driver that if he objected to the taking of his blood for a blood alcohol test, a breath or urine test might be taken at his own expense, did not mean that all testimony with regard to the test was inadmissible under the provisions of subsection (e) (now (d)); since the defendant did not have any test results introduced into evidence against him, he was not deprived of any statutory rights when the trial court permitted the arresting officer to testify that the defendant refused to submit to a blood alcohol test. Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984).

It is clear that subsection (e) (now (d)) requires that a person be advised of his or her right to a second test, but it does not dictate that a written waiver of that test be obtained; therefore, a written waiver of rights form is not a mandatory prerequisite of the foundation needed to be laid prior to introduction of any breathalyzer test results. Robertson v. State, 12 Ark. App. 243, 674 S.W.2d 947 (1984).

Written warning held to be sufficient compliance with this section since subsection (e) (now (d)) only requires that an individual be advised that he can have tests “in addition to any test administered at the direction of a law enforcement officer.” Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).

This section only requires a police officer's reasonable assistance in helping an accused obtain an additional blood alcohol test; it does not require the officer to pay for the additional test. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).

Testimony held to constitute sufficient evidence by which the trier of fact could have concluded that the defendant did not ask for a different test. Girdner v. City of Kensett, 285 Ark. 70, 684 S.W.2d 808 (1985).

Where the police, after administering a blood test to the defendant, advised the defendant that he had a right to an additional blood or urine test, the police substantially complied with the requirements of subsection (e) (now (d)) even though they did not mention an additional breath test; substantial compliance with subsection (e) (now (d)) is all that is required for the result of the test to be admitted into evidence. Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985).

Where defendant was fully advised of his right to an additional test, and his request that his own physician in another city perform the test was refused, the results of the intoxilyzer test were properly admitted; the provision for assistance 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. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985).

Breathalyzer test results were inadmissible where defendant, who was not advised of the full range of tests available to him, requested an additional test and this test was not given nor was defendant aided in obtaining another test. Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985).

The results of the breath test were admissible even though the defendant was not advised that he had a right to an additional breath test pursuant to this section where he was asked if he wanted a blood test and he was allowed five or six phone calls to raise the money for a blood test, even though he was unsuccessful, and no additional test was administered. Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985).

Defendant was properly advised of his right to a second test. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Defendant was not denied due process of law because he was not informed of his right to an independent test for intoxication. There is no such requirement unless he is given a test at the direction of a law enforcement officer. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988).

Requiring that a person be advised of his right to an additional test, under the circumstances outlined in § 5-65-202(b) 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 subsection (e) (now (d)) of this section would lead to absurd consequences. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989).

Law enforcement personnel adequately assisted defendant in obtaining additional blood alcohol testing as required by this section. Fiegel v. City of Cabot, 27 Ark. App. 146, 767 S.W.2d 539 (1989).

The statutory remedy for a person who is not afforded the opportunity to obtain an additional test as provided under § 5-65-203 is exclusion of any chemical test taken at the direction of law enforcement officers pursuant to subsection (e) (now (d)). Grayson v. State, 30 Ark. App. 105, 783 S.W.2d 75 (1990).

Where no breathalyzer test was completed, the arresting officer was not required to advise the defendant of his right to an additional chemical test or assist him in obtaining it. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

Where a breathalyzer test was refused by defendant, there was no requirement under this section that an independent chemical test be afforded her. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).

In order to comply with the “permit and assist” provision of subdivision (e)(2) (now (d)(3)) of this section, the officer must provide only such assistance for additional testing as is reasonable at the place and time of the particular case. Hudson v. State, 43 Ark. App. 190, 863 S.W.2d 323 (1993).

Assistance offered to the defendant by the police officer was reasonable under the circumstances and the officer's actions constituted substantial compliance with this section. Hudson v. State, 43 Ark. App. 190, 863 S.W.2d 323 (1993).

Trial court properly admitted blood-alcohol test results, although destruction of sample prevented additional tests, where defendant waived his right to his own analysis, there was no evidence of bad faith, exculpatory value of sample was not apparent, and defendant put on expert evidence that test results could be inaccurate. Kenyon v. State, 58 Ark. App. 24, 946 S.W.2d 705 (1997).

Trial court erred in allowing police officer to testify as to a breathalyzer test because the officer complied with only part of this section; although the officer advised defendant that he could have an additional test at his own expense and offered to assist him in obtaining one, it was undisputed that the officer failed to advise defendant that he would be reimbursed for the cost of the test if found not guilty. Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003).

Where defendant was arrested for driving while intoxicated, although the notice given to defendant by the officers regarding her right to have a different sobriety test was incomplete, defendant was notified that she could request a different type of test but failed to do so; thus, defendant was not permitted to exclude the results of her breathalyzer test. Reynolds v. State, 96 Ark. App. 360, 241 S.W.3d 765 (2006).

Trial court did not err in admitting the breathalyzer test results despite defendant's objection that he failed to receive his requested second test. The trooper substantially complied with the requirements of this section for providing reasonable assistance where he explained his standard practice was to advise the subject of his right to obtain a second test verbally and in writing, which was established with the introduction of the rights form signed by defendant, to explain that the cost of a second test was the subject's responsibility, and upon release from custody late at night to advise subjects that the second test would need to be administered at the local emergency room. Briggs v. State, 2015 Ark. App. 364, 465 S.W.3d 24 (2015).

Appeals.

A challenge as to the compliance with this section was not considered on appeal where the appellate court held that any error arising from the admission of the test result was harmless in that there was other evidence presented forcefully suggesting that defendant was intoxicated. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993).

Burden of Proof.

When a defendant moves to exclude a test pursuant to subdivision (e)(2) (now (d)(3)) of this section, the state bears the burden of proving by a preponderance of the evidence that the defendant was advised of his right to have an additional test performed and that he was assisted in obtaining a test. Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994).

In his appeal of a conviction for DWI, defendant successfully challenged the analysis of his urine, which allegedly tested positive for cannabinoids; because the chemical analysis was for an intoxicant other than alcohol and the state failed to meet its burden, under this section, that the test was done pursuant to required methods or by a certified individual, the trial court erred in finding the test to be admissible. Tenner v. State, 88 Ark. App. 123, 195 S.W.3d 383 (2004).

Compliance.

In action for damages arising from automobile accident, it was error to admit record of blood sample taken from plaintiff's deceased, where plaintiff objected that the report did not indicate by whom the blood sample was taken, it appearing that a certain person did take the sample but that there was no evidence that this person was a physician or registered nurse. Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972) (decision prior to 1975 amendment).

For cases discussing the prejudicial effect of failure to comply with Department of Health rules and regulations, see Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975); Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ct. App. 1979); Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ct. App. 1980).

In civil litigation, as well as in criminal cases, substantial compliance with §§ 5-65-202 — 5-65-205 and with the Health Department rules governing blood-alcohol tests, is all that is demanded to make such test results admissible. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975); St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988); Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990).

Even certified operators may not ignore the Department of Health regulations on operation and maintenance of the chromatograph, if their testimony is to form the basis of a presumption of intoxication. Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ct. App. 1979).

Evidence held sufficient to find that there was a sufficient degree of compliance with §§ 5-65-202 — 5-65-205 and the Department of Health's rules so that the test results were admissible. St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Tests used to determine the alcohol content of blood must be carefully monitored to assure reliability; however, only substantial compliance with health department regulations is required. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993).

Officer advice concerning defendant's right to an additional test by the person of his choice literally complied with this section, and the trial court's finding of reasonable assistance to obtain another test was not clearly against the preponderance of the evidence. Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994).

Because the breathalyzer test was not illegally obtained, Ark. R. Crim. P. 16.2 did not apply, and as no argument was made that a conflict existed between the rules and this section, defendant's motion to prohibit the introduction of the breathalyzer test into evidence was not a motion to suppress and the trial court erred in admitting the breathalyzer results over the objection of defendant where the form used to advise defendant failed to meet the statutory requirements. Mhoon v. State, 369 Ark. 134, 251 S.W.3d 244 (2007).

Circuit court erred in allowing the results of defendant's blood-alcohol test into evidence because the state failed to provide evidence that the blood was drawn by a physician or a person acting under the direction and supervision of a physician as required by this section; there was no evidence that the medical center employee who drew defendant's blood was a registered nurse, otherwise qualified to withdraw blood, or performing his normal duties of withdrawing blood from a patient, and there was no evidence that the employee was acting under the supervision or direction of a physician at the time defendant's blood was drawn. Bates v. State, 2011 Ark. App. 446, 384 S.W.3d 654 (2011).

Evidence.

Where, in prosecution for driving while intoxicated, the blood alcohol test was not ordered by a defendant or an officer of the law, but was ordered by an emergency room physician for his own use in connection with his treatment of a patient, the question was not whether the test complied with the strict procedures of this section, but whether the test results were admissible under Evid. Rule 803(4). Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).

The trial court did not err by admitting into evidence a breathalyzer log showing all tests performed on the machine for a period of five days, even though the defendant's blood alcohol content was the highest one recorded on it, where the log was admissible for the purpose of showing calibration of the machine and the defendant's test result, and the judge offered to admonish the jury to disregard the other test results or delete them, but the defendant rejected this offer. Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986).

Evidence regarding procedure used to test defendant's blood alcohol held insufficient to allow introduction of test results into evidence. Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987).

Section 5-65-103 states that it is unlawful for a person to operate a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood. However, subsection (a) of this section states that percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989).

This section merely sets out conditions affecting the admissibility of the initial breathalyzer test. A question of admissibility is distinguishable from the suppression of evidence contemplated by Ark. R. Crim. P. 24.3(b). Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993).

A showing that a blood alcohol chemical analysis was made by a method approved by the Director of the State Board of Health and/or the Director of the Arkansas State Police, as required by this section, is part of the foundation to be laid for the introduction of the results of such tests or analysis and the burden is upon the state to establish it. Caffey v. State, 43 Ark. App. 160, 862 S.W.2d 293 (1993).

Results of a blood alcohol chemical analysis test should not have been introduced into evidence without a showing that the procedures performed were in compliance with the Arkansas State Department of Health regulations, as required under this section. Caffey v. State, 43 Ark. App. 160, 862 S.W.2d 293 (1993).

Although § 5-65-206 does not require a machine operator's testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results, this section requires a blood sample to be collected in keeping with certain Board of Health methods in order for the test to be admissible in evidence. Caffey v. State, 43 Ark. App. 160, 862 S.W.2d 293 (1993).

Jury Instructions.

Trial court did not err in rejecting a DUI defendant's proffered jury instructions because the instructions' omission of any reference to chemical testing or chemical analysis failed to take into account § 5-65-103's incorporation of this section, which describes “the chemical analysis of a person's blood, urine, or breath.” The model jury instruction represented a more accurate reflection of the law, although it did not address the 2001 amendment to § 5-65-103, which had eliminated the phrase “as determined by a chemical test.” Graham v. State, 2012 Ark. App. 90, 389 S.W.3d 33 (2012).

Physician's Direction.

A registered nurse taking a defendant's blood sample following standard hospital policy with a physician on call meets the requirements and purpose of subsection (d), requiring the sample be taken “under the direction and supervision of a physician.” Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992).

Second Blood-Alcohol Test.

There is no requirement in subsection (e) (now (d)) of this section that the results of the first blood alcohol test be furnished so that the person tested can decide whether to request a second test; moreover, subsection (e) (now (d)), as currently drafted, makes good common sense. Even without knowing the results of the first test, the person whose blood is examined may well want to have a second test performed immediately to assure the validity and accuracy of the testing procedures. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994).

Police substantially complied with the requirement of § 5-65-204 that they assist defendant in obtaining an independent blood alcohol test, by giving the uncooperative defendant a phone book and directing him to contact a local hospital upon his release from jail. Lampkin v. State, 81 Ark. App. 434, 105 S.W.3d 363 (2003).

This section required the arresting officer to advise defendant of his right to obtain a second independent blood test, and defendant did not dispute that this occurred, and to permit and assist defendant in obtaining it. The trial court did not clearly err in finding that the officer substantially complied with the statute. Ebel v. State, 2014 Ark. App. 588, 445 S.W.3d 553 (2014).

Suppression of Evidence.

A motion to exclude evidence of the breathalyzer test on grounds that the officer had failed to advise defendant of his right to an additional test and to assist him in obtaining such a test as required by this section is not a motion to suppress evidence under Ark. R. Crim. P. 16.2. Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994).

Circuit court did not err in denying defendant's motion to suppress the evidence of his blood-alcohol test results because he had signed both the Miranda and Arkansas Statements of Rights forms and agreed to submit to the blood-alcohol test and there was no conflict between Ark. R. Crim. P. 12.3(b) and subdivision (c)(1) of this section regarding the person(s) authorized to do blood testing where the Rule did not apply to blood tests obtained by consent. Roe v. State, 2015 Ark. App. 693, 477 S.W.3d 551 (2015).

Waiver.

The driver of the automobile cannot waive the requirements as to the method of withdrawing the blood and the method of testing, inasmuch as the requirements were placed in the statute to assure the public and the driver that they could rely upon the tests in connection with highway safety in general. Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979).

Cited: Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975); Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981); Hughes v. State, 17 Ark. App. 34, 705 S.W.2d 455 (1986); Gullett v. State, 18 Ark. App. 97, 711 S.W.2d 836 (1986); Ballew v. State, 305 Ark. 542, 809 S.W.2d 374 (1991); King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993); Scalco v. City of Russellville, 318 Ark. 61, 883 S.W.2d 813 (1994); Taylor v. State, 2011 Ark. App. 215 (2011).