Ark. Code Ann. § 5-65-206 (2026)

Research References

ALR.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions. 119 A.L.R.5th 379.

Ark. L. Rev.

Legislation — No. 215 — Weight to Be Given Evidence of Alcoholic Content of the Blood Changed, 15 Ark. L. Rev. 437.

A Decade of Development in the Law of Criminal Procedure in Arkansas, 22 Ark. L. Rev. 669.

U. Ark. Little Rock L. Rev.

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

Case Notes

In General.

This section is not a criminal statute but rather a statute relating to admission of evidence in criminal prosecutions. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965).

Construction.

The “person calibrating the machine” is the person testing the accuracy of the machine's measurements as outlined in the regulations, or the senior operator. Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995).

Applicability.

It was error to apply this section to a civil proceeding for personal injuries arising out of automobile accident. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965); but see Judy v. McDaniel, 247 Ark. 409, 445 S.W.2d 722 (1969); Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981).

Certificate.

This section does not require the state to produce in court the Arkansas Department of Health official who certifies the breathalyzer machine; it allows certification to be proven with the certificate itself. Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985).

This section does not require proof of an installation certificate before test results may be admitted into evidence. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986).

Subsections (c) and (d) of this section require that (1) the method of testing must be approved by the Board of Health, (2) the machine must have been certified in the three months preceding arrest, and (3) the operator must have been trained and certified. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986).

Cross-Examination of Operator.

While subsection (d) does not require the State to introduce an installation certificate or a senior operator's testimony as a prerequisite to the introduction of chemical analysis test results, it does provide that the person who calibrates the machine and the person who operates it will be made available for cross-examination by the defense upon reasonable notice to the prosecutor. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986); Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990).

If defendant had desired to cross-examine senior operator, he had the burden of notifying the prosecutor to make the operator available; he therefore could not complain of the State's failure to produce the senior operator or his certificate. Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986).

Admission of breathalyzer results was error where, prior to trial the defendant indicated that he wished to cross-examine all persons responsible for the calibration and certification of the breathalyzer, but the state failed to make such persons available at trial; further, such error was prejudicial, notwithstanding that the jury might have convicted the defendant of operating a motor vehicle while intoxicated based on the testimony of the arresting officer that the defendant had an odor of alcohol about him and failed two field-sobriety tests, without considering the improperly admitted testimony concerning the defendant's blood-alcohol content. White v. State, 73 Ark. App. 264, 42 S.W.3d 584 (2001).

It was not a violation of subdivision (d)(1) of this section to admit certificates of the calibration of a breathalyzer machine and of the qualifications of the machine's operator, without the testimony of the authors of those certificates, because the statute had been amended to remove a prior requirement that the State provide such witnesses upon receiving notice from a defendant. Chambers v. State, 2012 Ark. 407, 424 S.W.3d 296 (2012).

In defendant's trial for driving while intoxicated, it was not improper to place the burden on defendant, under this section, to subpoena the authors of certificates that the breathalyzer machine used in defendant's case had been properly calibrated and that the operator of the machine was qualified, if defendant wished to cross-examine the authors; the certificates were not testimonial evidence, so the State had no duty to bring the authors into court. Chambers v. State, 2012 Ark. 407, 424 S.W.3d 296 (2012).

Due Process.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Evidence.

—In General.

Examination of investigating police officer relative to intoximeter test and amount of alcohol allegedly consumed by defendant was not error where defendant himself testified that he had consumed a certain quanity of alcohol and cross-examination of investigating officer elicited testimony that officer did not arrest defendant but would have if the meter reading had been high enough. Judy v. McDaniel, 247 Ark. 409, 445 S.W.2d 722 (1969).

Where there was testimony of witnesses that defendant acted drunk while in liquor store and further testimony of policeman that defendant was in wrong lane of traffic and weight of alcohol in defendant's blood was above amount for statutory presumption of intoxication it was not improper to overrule a motion for a directed verdict of acquittal. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

Expert testimony explaining the meaning of blood alcohol content is not required to prove intoxication. In fact, one may be convicted of driving while intoxicated without the use of a blood alcohol test. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988).

Trial judge did not abuse his discretion in acquitting defendant where officer revealed that he did not know for certain what simulator he was using because the device used had lost its label, and was unable to testify that device had in fact been approved by the health department. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990).

State met proof required under Department of Health Regulation for Alcohol Blood Testing, § 3.20. Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992).

Although this section does not require a machine operator's testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results, § 5-65-204 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).

The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation, and proof by chemical test that the motorist's blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995).

Defendant was not entitled to a presumption that he was not intoxicated based on the test that showed his blood-alcohol content to be 0.05%; defendant failed to take into account the blood test that was drawn some 30 minutes after the wreck, which showed a blood-alcohol content of 0.0904 percent, and the trooper's testimony that defendant had been given fluids prior to the time that the second blood sample was drawn. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).

Where a breath test performed within two hours of a traffic stop showed that defendant's blood alcohol level was more than 0.08, defendant's claim that his alcohol level would have still been rising at the time of the offense and could have been peaking at the time of the tests was unsupported by the evidence. The test results, along with evidence that he smelled of alcohol, crossed the center line, and failed sobriety tests was sufficient to support his conviction of driving while intoxicated pursuant to § 5-65-103(a) (now (a)(1)). Hayden v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008).

Court rejected defendant's claim of error in the denial of defendant's motion for a directed verdict in her driving while intoxicated (DWI) case, and contrary to defendant's claim, proof of blood-alcohol content, although admissible as evidence tending to prove intoxication, was not necessary to sustain a DWI conviction, as under subdivision (a)(2) of this section, a blood alcohol level of more than .04 but less than .08 did not give rise to a presumption of intoxication, but could be considered with other evidence in determining intoxication. Based on the eyewitness testimony, defendant's admission to drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses' observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated, as defined in § 5-65-102, and (1) the jury could have discounted testimony by defendant's son that he was driving the car, and (2) the fact that defendant was not cited for refusal to submit was of no moment because she did not refuse to submit to testing but instead deliberately delayed an officer in obtaining a successful test result by interfering with the testing. Blair v. State, 103 Ark. App. 322, 288 S.W.3d 713 (2008).

—Portable Breath Test.

The portable breath test is not one certified by the Department of Health and is therefore not admissible under this section. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988).

The results of a portable breath test, or what is sometimes called a roadside sobriety test, which are not admissible to prove a person is guilty of driving while intoxicated, are admissible when they would indicate a person is not guilty where the evidence is exculpatory, is crucial to the defense, and is sufficiently reliable to warrant admission. Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988).

Since portable breathalyzer tests have not been certified by the Department of Health, admitting the evidence of the portable breathalyzer test was erroneous; however, the error was harmless. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).

Trial court erred in allowing the state to introduce evidence that defendant failed a portable breath test since the portable breathalyzer test had not been certified by the Arkansas Department of Health; a chemical analysis that has not been certified by the Department of Health is not admissible as evidence of driving while intoxicated under this section. Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003).

—Refusal to Take Chemical Test.

Evidence of the refusal to submit to a chemical test can properly be admitted as circumstantial evidence showing consciousness of guilt of a defendant charged with offense of driving while intoxicated, and once admitted, the weight of this evidence is a question to be resolved by the trier of fact, which may also consider the circumstances surrounding the refusal and any explanation given for declining to take the test. Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990).

Method of Analysis.

—In General.

It was error to admit testimony as to a urine analysis where there was no evidence analysis had been made according to a method approved by director of State Board of Health or Director of State Police. Jones v. Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965).

Trial court did not abuse its discretion in admitting results of breathalyzer test over objections of defendant that state failed to show officer who administered test was competent operator of the machine where officer briefly outlined operation of the machine, said that he had been to school to learn to operate it and that he had been operating it as part of his duties for a period of time. Smith v. State, 243 Ark. 12, 418 S.W.2d 627 (1967).

Where intoximeter was certified during period in which test of driver was made and there was a certified machine operator present at such test although he did not conduct the test, there was sufficient foundation for test findings under this section to admit them into evidence in action for property damages and personal injury. Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981).

Intoxilyzer satisfies the statutory requirement of being a “chemical analysis.” Dollar v. State, 287 Ark. 153, 697 S.W.2d 93 (1985).

—Compliance with Rules.

Where there was evidence that there was substantial compliance with Department of Health rules in the taking of a blood test to determine alcoholic content such evidence was admissible. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

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).

Failure to calibrate machine as required by Department of Health regulation held not to be substantial compliance with the rule, and the failure to abide by the regulation was prejudicial to the defendant. Cossey v. State, 267 Ark. 679, 590 S.W.2d 60 (Ct. App. 1979).

Where the defendant was collectively observed by officers for 30 minutes prior to administering of breath test, fact that he was not observed for 20 minutes by the operator of machine as required by Department of Health standards was of no consequence since substantial compliance with health department regulations is all that is required. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).

—Time.

Although Department of Health rules required that the sample of blood to determine intoxication be collected within two hours [now four hours] of an alleged offense and the testimony showed that the blood was drawn more than three hours thereafter, where it was also shown that the longer one waits to run the blood test, the more the percentage of alcohol decreases, no prejudicial error was demonstrated. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

This section does not provide an unqualified exclusionary rule of evidence for tests administered more than two hours after a person is arrested for driving while intoxicated but does provide for a presumption where the test is administered within two hours [now four hours] of arrest and the blood alcohol content is within a certain percentage. Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985).

This section is silent regarding situations in which breath test is taken two hours [now four hours] or more after the arrest, and the result reflects a blood alcohol content of 0.10% or more, for a delay beyond two hours could result in the blood alcohol content of an intoxicated person declining to the extent that it could no longer be detected by the testing mechanism, or, if detected it would register a smaller level and in such cases it would not be fair to apply either of the statutory provisions on presumptions. However, if the delay is two hours or longer and the test still shows a blood alcohol content of 0.10% or more, neither provision on presumptions is applicable, and the test is admissible. Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985).

Notice.

Under former version of subsection (d) of this section, a new notice must be given following an appeal to circuit court and without such notice being filed the state is under no duty to produce the witness. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).

Cited: Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969); Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976); St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ct. App. 1980); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982); Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983); Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Southwest Pipe & Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (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); Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992); State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Smith v. State, 55 Ark. App. 97, 931 S.W.2d 792 (1996).