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Subchapter 2: Chemical Analysis of Body Substances

5-65-201.  Rules and regulations.
The Division of Health of the Department of Health and Human Services may promulgate rules and regulations reasonably necessary to carry out the purposes of this subchapter.

5-65-202.  Implied consent.

(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state is deemed to have given consent, subject to the provisions of § 5-65-203, to one (1) or more chemical tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her breath or blood if:

(1) The person is arrested for any offense arising out of an act alleged to have been committed while the person was driving while intoxicated or driving while there was an alcohol concentration of eight hundredths (0.08) or more in the person’s breath or blood;

(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or

(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an alcohol concentration of eight hundredths (0.08) or more in the person’s breath or blood.

(b) Any 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who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided by subsection (a) of this section, and one (1) or more chemical tests may be administered subject to the provisions of § 5-65-203.

5-65-203.  Administration.

(a) One (1) or more chemical tests authorized in § 5-65-202 shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was an alcohol concentration of eight hundredths (0.08) or more in the person’s breath or blood.

(b)  (1) The law enforcement agency by which the law enforcement officer is employed shall designate which chemical test or chemical tests shall be administered, and the law enforcement agency is responsible for paying any expense incurred in conducting the chemical test or chemical tests.

(2) If the person tested requests that additional chemical test or chemical tests be made, as authorized in § 5-65-204(e), the cost of the additional chemical test or chemical tests shall be borne by the person tested, unless the person is found not guilty in which case the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test or chemical tests.

(3) If any person objects to the taking of his or her blood for a chemical test, as authorized in this chapter, the breath or urine of the person may be used to make the chemical analysis.

5-65-204.  Validity — Approved methods.

(a)  (1) ”Alcohol concentration” means either:

(A) Grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood; or

(B) Grams of alcohol per two hundred ten liters (210 l) of breath.

(2) The alcohol concentration of other bodily substances is based upon grams of alcohol per one hundred milliliters (100 ml) or one hundred cubic centimeters (100 cc) of blood, the same being percent weight per volume or percent alcohol concentration.

(b)  (1)  (A) A chemical analyses made to determine the presence and amount of alcohol of a person’s blood, urine, or breath to be considered valid under the provisions of this act shall be performed according to a method approved by the Division of Health of the Department of Health and Human Services or by an individual possessing a valid permit issued by the division for this purpose.

(B) The division may:

(i) Approve satisfactory techniques or methods for the chemical analysis;

(ii) Ascertain the qualifications and competence of an individual to conduct the chemical analysis; and

(iii) Issue a permit that is subject to termination or revocation at the discretion of the division.

(2) However, a method of chemical analysis of a person’s blood, urine, or other bodily substance made by the State Crime Laboratory for determining the presence of one (1) or more controlled substances or any intoxicant is exempt from approval by the division or the State Board of Health.

(c) To be considered valid under the provisions of this section, a chemical analysis of a person’s blood, urine, breath, or other bodily substance for determining the alcohol content of the blood or breath shall be performed according to a method approved by the board.

(d)  (1) When a person submits to a blood test at the request of a law enforcement officer under a provision of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.

(2) The limitation in subdivision (d)(1) of this section does not apply to the taking of a breath or urine specimen.

(3)  (A) No person, institution, or office in this state that withdraws blood for the purpose of determining alcohol or controlled substance content of the blood at the request of a law enforcement officer under a provision of this chapter shall be held liable for violating any criminal law of this state in connection with the withdrawing of the blood.

(B) No physician, institution, or person acting under the direction or supervision of a physician shall be held liable in tort for the withdrawal of the blood unless the person is negligent in connection with the withdrawal of the blood or the blood is taken over the objections of the subject.

(e)  (1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his or her own choice administer a complete chemical test in addition to any chemical test administered at the direction of a law enforcement officer.

(2) The law enforcement officer shall advise the person in writing of the right provided in subdivision (e)(1) of this section and that if the person chooses to have an additional chemical test and the person is found not guilty, the arresting law enforcement agency shall reimburse the person for the cost of the additional chemical test.

(3) The refusal or failure of a law enforcement officer to advise a person of the right provided in subdivision (e)(1) of this section and to permit and assist the person to obtain a chemical test under subdivision (e)(1) of this section precludes the admission of evidence relating to a chemical test taken at the direction of a law enforcement officer.

(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the chemical test shall be made available to the person or to his or her attorney.

5-65-205.  Refusal to submit.

(a)  (1) If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-202, no chemical test shall be given, and the person’s motor vehicle operator’s license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the person from whom the motor vehicle operator’s license was seized a temporary driving permit, as provided by § 5-65-402.

(2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to § 5-1-108.

(b) The Office of Driver Services shall then proceed to suspend or revoke the driving privilege of the arrested person, as provided in § 5-65-402. The suspension shall be as follows:

(1)  (A)  (i) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person’s blood or breath.

(ii)  (a) However, if the office allows the issuance of an ignition interlock restricted license under § 5-65-118, the ignition interlock restricted license shall be available immediately.

(b) The ignition interlock restricted license provision of § 5-65-118 does not apply to the suspension under subdivision (b)(1)(A)(i) of this section if the person is arrested for an offense of operating or being in actual physical control of a motor vehicle while intoxicated by the ingestion of or by the use of a controlled substance.

(iii) The restricted driving permit provision of § 5-65-120 does not apply to this suspension.

(B) The office, in addition to any other penalty, shall deny to that person the issuance of an operator’s license until that person has been issued an ignition interlock restricted license for a period of six (6) months;

(2) Suspension for two (2) years, during which no restricted permit may be issued, for a second offense of refusing to submit to a chemical test of blood, breath, or urine for the purposes of determining the alcohol or controlled substance content of the person’s blood or breath within five (5) years of the first offense;

(3) Revocation for three (3) years, during which no restricted permit may be issued, for the third offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person’s blood within five (5) years of the first offense; and

(4) Lifetime revocation, during which no restricted permit may be issued, for the fourth or subsequent offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person’s blood or breath within five (5) years of the first offense.

(c) [Repealed.]

(d) In order to determine the number of previous offenses to consider when suspending or revoking the arrested person’s driving privileges, the office shall consider as a previous offense any of the following that occurred within the five (5) years immediately before the current offense:

(1) Any conviction for an offense of refusing to submit to a chemical test; and

(2) Any suspension or revocation of driving privileges for an arrest for refusing to submit to a chemical test when the person was not subsequently acquitted of the criminal charge.

(e) In addition to any other penalty provided for in this section:

(1) If the person is a resident without a license or permit to operate a motor vehicle in this state, the office shall deny to that person the issuance of a license or permit for a period of six (6) months for a first offense; and

(2) For a second or subsequent offense by a resident without a license or permit to operate a motor vehicle, the office shall deny to that person the issuance of a license or permit for a period of one (1) year.

5-65-206.  Evidence in prosecution.

(a) In any criminal prosecution of a person charged with the offense of driving while intoxicated, the amount of alcohol in the defendant’s breath or blood at the time or within four (4) hours of the alleged offense, as shown by chemical analysis of the defendant’s blood, urine, breath, or other bodily substance gives rise to the following:

(1) If there was at that time an alcohol concentration of four hundredths (0.04) or less in the defendant’s blood, urine, breath, or other bodily substance, it is presumed that the defendant was not under the influence of intoxicating liquor; and

(2) If there was at the time an alcohol concentration in excess of four hundredths (0.04) but less than eight hundredths (0.08) by weight of alcohol in the defendant’s blood, urine, breath, or other bodily substance, this fact does not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

(b) The provisions in subsection (a) of this section shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question of whether or not the defendant was intoxicated.

(c) The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health.

(d)  (1)  (A) Except as provided in subsection (e) of this section, a record or report of a certification, rule, evidence analysis, or other document pertaining to work performed by the Office of Alcohol Testing of the Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained in the record or report in a court of this state, subject to the applicable rules of criminal procedure when duly attested to by the Director of the Office of Alcohol Testing of the Department of Health or his or her assistant, in the form of an original signature or by certification of a copy.

(B) A document described in subdivision (d)(1)(A) of this section is self-authenticating.

(2) However, the instrument performing the chemical analysis shall have been duly certified at least one (1) time in the last three (3) months preceding arrest, and the operator of the instrument shall have been properly trained and certified.

(3) Nothing in this section is deemed to abrogate a defendant’s right to confront the person who performs the calibration test or check on the instrument, the operator of the instrument, or a representative of the office.

(4) The testimony of the appropriate analyst or official may be compelled by the issuance of a proper subpoena by the party who wishes to call the appropriate analyst or official given ten (10) days prior to the date of hearing or trial, in which case the record or report is admissible through the analyst or official, who is subject to cross-examination by the defendant or his or her counsel.

(e) When a chemical analysis of a defendant’s blood, urine, or other bodily substance is made by the State Crime Laboratory for the purpose of ascertaining the presence of one (1) or more controlled substances or any intoxicant, other than alcohol, in any criminal prosecution under § 5-65-103, § 5-65-303, or § 5-10-105, the provisions of § 12-12-313 govern the admissibility of the chemical analysis into evidence rather than the provisions of this section.

5-65-207.  Alcohol testing devices.

(a)  (1) Any instrument used to determine the alcohol content of the breath for the purpose of determining if the person was operating a motor vehicle while intoxicated or with an alcohol concentration of eight hundredths (0.08) or more shall be so constructed that the analysis is made automatically when a sample of the person’s breath is placed in the instrument, and without any adjustment or other action of the person administering the analysis.

(2) The instrument shall be so constructed that the alcohol content is shown by visible digital display on the instrument and on an automatic readout.

(b) Any breath analysis made by or through the use of an instrument that does not conform to the requirements prescribed in this section is inadmissible in any criminal or civil proceeding.

(c)  (1) The State Board of Health may adopt appropriate rules and regulations to carry out the intent and purposes of this section, and only instruments approved by the board as meeting the requirements of this section and regulations of the board shall be used for making the breath analysis for determining alcohol concentration.

(2)  (A) The Department of Health specifically may limit by its rules the types or models of testing devices that may be approved for use in Arkansas for the purposes set forth in this section.

(B) The approved types or models shall be specified by manufacturer’s name and model.

(d) Any law enforcement agency that conducts alcohol testing shall maintain full compliance with this section.

5-65-208.  Collisions — Testing required.

(a)  (1) When the driver of a motor vehicle is involved in an accident resulting in loss of human life or when there is reason to believe death may result, in addition to a penalty established elsewhere under state law, a chemical test of the driver’s blood, breath, or urine shall be administered to the driver, even if fatally injured, to determine the presence of and percentage of concentration of alcohol or the presence of drugs, or both, in the driver’s body.

(b)  (1) The law enforcement agency that investigates the collision, the physician in attendance, or any other person designated by state law shall order the chemical test as soon as practicable.

(2)  (A) The medical personnel who conducted the chemical test under subsection (a) of this section of the driver’s blood, breath, or urine shall forward the results of the chemical test to the Department of Arkansas State Police, and the department shall establish and maintain the results of the analyses required by subsection (a) of this section in a database.

(B) The information in the database shall reflect the number of fatal motor vehicle accidents in which:

(i) Alcohol was found to be a factor, with the percentage of alcohol concentration involved;

(ii) Drugs were found to be a factor, listing the class of drugs so found and their amounts; and

(iii) Both alcohol and drugs were found to be factors, with the percentage of alcohol concentration involved, and listing the class of drugs so found and their amounts.

(c) The results of the analyses required by this section shall be reported to the department and may be used by state and local officials for statistical purposes that do not reveal the identity of the deceased person or for any law enforcement purpose, including prosecution for the violation of any law.


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