Ernie Charles Metzner v. State of Arkansas, 2015 Ark. 222
Contributed By: Law Clerk 1
At 2:45 a.m. in Rogers, AR, Ernie Metzner approached a checkpoint in his Ford Mustang; he stopped the vehicle approximately 150 feet short of the roadblock. Officer Hahn motioned the vehicle to move forward and Metzner slowly crept up to where the officer was standing. As Metzner rolled down the window, the odor of intoxicants and cologne seeped out of the crack in the window. Officer Hahn advised Metzner that he could smell the odor of intoxicants, but immediately Metzner denied that he had been drinking. Based on his experience, Hahn knew that cologne was a typical masking agent for the odor of alcohol or drugs, so he asked Metzner to drive the vehicle to the curb. Metzner stopped the Mustang well short of the curb, such that the vehicle was blocking the street. Once again, Officer Hahn asked Metzner to pull up to the curb. He pulled up a little farther but the vehicle remained several feet away from the curb. As he approached Metzner again, Officer Hahn noticed that his eyes were bloodshot and watery.
At this moment, Officer Hahn asked Metzner to exit the car for a breathalyzer test. Metzner refused Hahn’s request to take a portable breath test, and he also initially declined Hahn’s command to exit the car. After some coercing, Metzner agreed to step out of the vehicle, but he used the door to hoist himself out of the car and to balance himself while standing. Metzner displayed poor balance while walking to the front of the Mustang at Hahn’s request; he used his right hand to steady himself the whole way. While standing at the front of the vehicle swaying in a circular motion, Metzner again denied that he had been drinking and refused to perform any field-sobriety tests. Officer Hahn placed Metzner under arrest for driving while intoxicated (DWI) based on his driving, his failure to properly park (twice), the odor of intoxicants, his bloodshot and watery eyes, and his poor balance and swaying. Hahn even had to hold onto Metzner’s arm when walking him to the patrol car out of fear that Metzner might fall. Once Metzner was secure in the patrol car, Officer Hahn had to move the Ford Mustang out of the traffic lane because it was still blocking the roadway. During the inventory of Metzner’s car, Hahn found a cool beer bottle with liquid in it.
Officer Hahn advised Metzner of his rights under the Arkansas Implied-Consent law, but Metzner did not respond when asked whether he would take a breath test. While walking on the smooth floor at the police station, Officer Hahn had to hold onto Metzner to keep him from falling because he kept stumbling over his own feet while on his way to the room where the intoximeter was located. Finally, after Metzner refused (by not responding) to take the breath test again, Officer Hahn decided to obtain a warrant to draw blood from Metzner to test his blood alcohol content (BAC). “The collection and testing of a person’s blood, breath, or urine constitutes a search under the Fourth Amendment to the United State’s Constitution, requiring a warrant or an exception to the warrant requirement.” Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989). Metzner’s BAC was .15%, almost twice the legal limit.
After Metzner waived his right to be tried before a jury, the Circuit Court of Benton County found him guilty of driving while intoxicated (DWI), second offense, and guilty of violating the implied-consent law. As a consequence of this conviction, the circuit court sentenced him to thirty days in jail with twenty-three days suspended, and they fined him $750, plus court costs. In an attempt to reverse his conviction on appeal, Metzner argued that the circuit court erred in denying his motion to suppress the results of a blood-alcohol test taken pursuant to a search warrant, contending that the implied-consent statutes prohibit the issuance of a warrant to obtain a chemical test.
As his sole issue on appeal, Metzner contends that the circuit court erred by denying his motion to suppress the results of the blood-alcohol test. He argues that, according to Arkansas Code Annotated section 5-65-205(a) (Repl. 2005), when a person under arrest refuses a law enforcement officer’s request to submit to a chemical test, the statute provides that “no chemical test shall be given.” Metzner asserts that this language prohibits the issuance of a warrant to collect a blood sample for testing. Metzner v. State, 2015 Ark. 222, 4.
“[a]ny 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 . . . to a chemical test 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.”
Ark. Code Ann. § 5- 65-202(a) (Repl. 2005).
The Court observed that the intent of the General Assembly in passing these laws was to mandate alcohol testing for a person stopped by a law enforcement officer when that officer has reasonable cause to believe that the driver is intoxicated. Id. at 6. However, Arkansas’ Implied-Consent law also recognizes the right of a person to withdraw this consent.
“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.”
Ark. Code Ann. § 5-65-205(a).
Even though each person has the right to withdraw consent, there is a statutory penalty that comes along with that decision. The penalty imposed for refusing to take the chemical test at the direction of a law enforcement officer is “the suspension or revocation of the arrested person’s driving privilege.” Ark. Code Ann. § 5-65-205(b). In addition, this court has held that evidence of an accused’s refusal to submit to a chemical test can be properly admitted as circumstantial evidence showing a knowledge or consciousness of guilt. Id. at 6. (citing Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998)).
The State contended that, because the statute addresses only the issue of implied-consent and warrantless searches, it cannot effectively be argued that the statute contains a prohibition against chemical testing pursuant to a valid search warrant. The majority of the Court agrees with the State. The relevant part of section 5-65-205(a) provides, “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[.]” The Court reasoned that when viewed in isolation, the phrase “no chemical test shall be given” seemingly supports Metzner’s position that no test whatsoever may be given. However, when viewed in context by considering the language preceding the phrase, it is clear that the phrase specifically refers only to the test requested by an officer pursuant to section 5-65-202, which authorizes a warrantless test based on implied-consent. “Therefore, construing the plain language of section 5-65-205(a) as a whole, it is apparent that the test that may not be given is limited to the warrantless test authorized by section 5-65-202.” Id. at 10.
The Court affirmed Metzner’s conviction and sentence.
Justice Robin F. Wynne concurred in part and dissented in part with the majority opinion. The only real concurrence that Justice Wynne had with the majority was the conviction of Metzner. He believed the refusal to grant to motion to suppress the blood test by the trial court was harmless error because the conviction could have been sustained solely based on circumstantial evidence along with Officer Hahn’s testimony at trial. However, as to the basis of the argument concerning the “no chemical test shall be given” language, he disagrees with the majority.
Justice Wynne looks to other courts for guidance in considering his position on the issue. In considering its own refusal provision, which contained the phrase, “none shall be given,” the Georgia Supreme Court held that the provision did not allow for the issuance of a warrant to obtain a sample for testing. State v. Collier, 612 S.E.2d 281 (Ga. 2005). The court stressed the mandatory nature of the use of the word “shall.” Justice Wynne agreed with the Georgia Supreme Court and believed that language similar to that employed in Arkansas’s refusal provision prohibits the use of a search warrant to obtain a sample for testing. Justice Wynne said, “We first seek the legislative intent by giving the words of the statute their usual and ordinary meaning in common language . . . and [h]ere, the language employed by the legislature is clear and unambiguous.” Metzner, 2015 Ark. at 222, 13. He says that the court erred by determining the intent of the legislature to be different than that clearly expressed by the legislature itself in passing the statute.
Justice Josephine Linker Hart dissented as well, by saying, “While the majority pays lip service to the requirement that this court strictly construe criminal statutes, it ignored the clearly stated intent of the legislature and substituted its own opinion of how our DWI laws should be structured. Typical of when this court ignores the law, the majority attempts to justify its action as an attempt to avoid an “absurd” result.” Id. at 15. Justice Hart definitely did not seem happy with the result of the Majority in this case. She draws a distinction in her dissent between the statute in question and other implied-consent statutes involving car wrecks with drunk drivers. She believes that the Court ignored the intention of the legislature and substituted its own definition where it did not belong. She says, “It is disconcerting that the majority has shirked its duty by ignoring both our federal and state constitutions and interprets a criminal statute in a way that empowers the State to intrude into the lives of its citizens in ways that the people, through their elected legislature, clearly did not authorize.”
However, regardless of Justice Wynne and Justice Hart’s dissenting opinion as it relates to the new reading of the language in the Arkansas Implied-Consent statute, BAC (blood alcohol content) tests performed after a warrant is obtained does not violate the implied-consent law.