Ark. Code Ann. § 5-65-309 (2026)
Implied consent
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An underage person who operates a motorboat on the waters of this state or a motor vehicle or is in actual physical control of a motor vehicle or motorboat in this state is deemed to have given consent, subject to § 5-65-203, to a chemical test of his or her breath, saliva, or urine for the purpose of determining the alcohol concentration or controlled substance content of his or her breath or blood if:
- The underage person is arrested for any offense arising out of an act alleged to have been committed while the underage person was driving or boating while under the influence or driving or boating while there was an alcohol concentration of two hundredths (0.02) but less than eight hundredths (0.08) in his or her breath, blood, saliva, or urine;
- The underage person is involved in an accident while operating or in actual physical control of a motorboat on the waters of this state or a motor vehicle; or
- The underage person is stopped by a law enforcement officer who has reasonable cause to believe that the underage person, while operating or in actual physical control of a motorboat on the waters of this state or a motor vehicle, is under the influence or has an alcohol concentration of two hundredths (0.02) but less than eight hundredths (0.08) in his or her breath or blood.
- An underage person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and a chemical test may be administered subject to § 5-65-203.
- A test of an underage person's blood under this section to determine the underage person's alcohol concentration, controlled substance content, or other intoxicating substance content in his or her blood requires a warrant based on probable cause that the underage person was operating or in actual physical control of a motorboat on the waters of this state or a motor vehicle while intoxicated.
History. Acts 1993, No. 863, § 9; 2001, No. 561, § 15; 2013, No. 361, § 10; 2015, No. 299, § 13; 2017, No. 1031, § 6; 2019, No. 380, § 1.
Amendments. The 2001 amendment inserted “breath or” in the introductory language in (a) and (a)(3); substituted “an alcohol concentration … or her breath or” for “one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) of alcohol in the person's” in (a)(1); and substituted “an alcohol concentration … eight-hundredths (0.08)” for “one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) of alcohol” in (a)(3).
The 2013 amendment inserted “saliva” and “concentration” in (a).
The 2015 amendment inserted “motorboat on the waters of this state or a”, “or motorboat”, and “or boating” throughout the section; added “saliva, or urine” at the end of (a)(1); deleted “the provisions of” twice preceding “§ 5-65-203”; and substituted “An” for “Any” at the beginning of (a) and (b).
The 2017 amendment deleted “blood” preceding “breath, saliva” in (a); and added (c).
The 2019 amendment, in (c), substituted “underage person's” for “person's” twice and inserted the third occurrence of “underage”.
Research References
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
Breath Test.
When defendant was arrested for suspicion of underage driving under the influence in violation of § 5-65-303, the deputy's actions in transporting defendant to a nearby county outside his jurisdiction to administer a breathalyzer test were lawful under the Fourth Amendment because the test had to be given without delay due to the exigent circumstance of defendant's falling blood alcohol content and in accordance with Health Department regulations. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143 (2012).
Cited: Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).