                                  Cite as 2016 Ark. App. 182

                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                        No. CR-15-673


MATTHEW AARON BURR                                 Opinion Delivered March 30, 2016
                 APPELLANT
                                                   APPEAL FROM THE BENTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. CR-2014-1499-1]

STATE OF ARKANSAS                                  HONORABLE ROBIN F. GREEN,
                                   APPELLEE        JUDGE

                                                   AFFIRMED; REMANDED FOR
                                                   CORRECTION OF SENTENCING
                                                   ORDER



                                RITA W. GRUBER, Judge

       Matthew Aaron Burr was charged in the Benton County Circuit Court with first-

offense driving while intoxicated, refusal to submit to a chemical test, and failure to use a turn

signal. He waived his right to trial by a jury and filed a motion to suppress all evidence or

statements he made as a result of a traffic stop that led to his arrest. At the conclusion of a

combined suppression hearing and trial, he asked that Arkansas Code Annotated section

5-65-202 and subsection -205(a)(2) (Supp. 2011) be declared unconstitutional “as applied”

because they are in direct conflict with the Fourth Amendment as applied in Missouri v.

McNeely, 133 S. Ct. 1552 (2013). The circuit court denied the motion to suppress and found

him guilty of all charges.

       In his sole point on appeal, Burr contends that the circuit court erred in not finding

Arkansas Code Annotated section 5-65-205(a)(2), entitled “Refusal to submit to a chemical
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test,” unconstitutional. The statute, a part of our criminal code, is codified under the chapter

on driving while intoxicated and the subchapter on chemical analysis of body substances. See

also Ark. Code Ann. § 5-65-202, entitled “Implied consent.”

       Burr asks that his conviction for refusal to take chemical tests be reversed and dismissed

on the basis of unconstitutionality and that his DWI conviction be reversed because his refusal

to take a chemical test was used to show consciousness of guilt. He lists the following

extraordinary issues in his brief: federal constitutional interpretation; substantial public interest;

significant issue needing clarification or development of the law, or overruling of precedent;

and significant issue concerning construction of statute, ordinance, rule, or regulation. He

notes that three related drunk-driving cases involving blood or breath tests are now pending

before the United States Supreme Court: Birchfield v. North Dakota, 858 N.W.2d 302 (N.D.),

cert. granted, 136 S. Ct. 614 (2015); Beylund v. Levi, 859 N.W.2d 403 (N.D.), cert. granted, 136

S. Ct. 614 (2015); and Bernard v. Minnesota, 859 N.W.2d 762, cert. granted, 136 S. Ct. 615

(2015). The Court’s docket listing for consolidation of these cases states that each case

presents the same question: “Whether, in the absence of a warrant, a State may make it a

crime for a person to refuse to take a chemical test to detect the presence of alcohol in the

person’s blood.” Additionally, the docket shows that the cases are set for oral argument on

April 20, 2016.

       The relevant statutes in this appeal are Arkansas Code Annotated sections 5-65-202




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and 5-65-205 (Supp. 2011).1 Section 5-65-202(a), Implied consent, provides in part that

       [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, 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:
              ...

                (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.

Ark. Code Ann. § 5-65-202(a). Section 5-65-205(a)(1), Refusal to submit to a chemical test,

directs that if an arrestee refuses to submit to a chemical test “as provided in § 5-65-202, no

chemical test shall be given,” but the arrestee’s license shall be seized. Arkansas Code

Annotated section 5-65-205(a)(2) specifies that refusal to submit to a chemical test “is a strict

liability offense and is a violation” under Arkansas law.

           Officer Eric Lyle of the Pea Ridge Police Department testified that the following

events began shortly after midnight on March 22, 2013. He observed a truck make a “yield

turn” at a high rate of speed, followed it, observed it turn without signaling, and activated his

lights. The truck braked but then accelerated and kept going. Lyle activated his siren and

spotlight. The driver, Burr, turned to look at Lyle and waved, but did not pull over. With

lights, siren, and spotlight on, Lyle continued following the truck, driving approximately ten

miles an hour over the speed limit of 25. Burr pulled into the driveway of a home that was


       1
        The statutes have since been amended, but the amendments are not relevant to the
current appeal.

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his ultimate destination approximately a mile and a half later.

       Lyle approached with his gun drawn, ordered Burr out of the truck, and told him to

place his hands on it. Burr complied and was handcuffed. Lyle noticed that a strong odor of

intoxicants was emanating from Burr; his eyes were bloodshot and watery; and he was

wearing a t-shirt, pajama pants, and no shoes. Burr said that he had not pulled over because

he “didn’t do anything wrong.” Lyle noticed that his speech was slow and slurred. When

asked where he was going, Burr responded, “Here”; when asked whether he had drunk

anything, Burr replied, “No.” Lyle attempted to administer a portable breath test; Burr did

not cooperate and merely pretended to blow into the device, saying that he could not do it

because he had a “blown” eardrum. Lyle could not conduct other field-sobriety tests because

the area was unsuitable. Lyle arrested Burr for driving while intoxicated (“DWI”) and failing

to yield to an emergency vehicle.2

       Lyle placed Burr in the back of his patrol car and decided to give him “the benefit of

the doubt” that his eardrum was blown and take him to the hospital for a blood test. Lyle

orally reviewed the implied-consent form with Burr as he sat in the back of the unit, and Burr

responded that he did not think the officer could tow his truck. When asked more than five

times about the blood test, Burr responded, “I guess so, I don’t know” at first and then did

not respond at all.3 Lyle took him to the sheriff’s office instead.



       2
        The record before us does not show a disposition of this charge.
       3
         The circuit court discounted Burr’s testimony that he signed the form in the back of
the officer’s patrol car and consented to the blood draw.

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          Lyle conducted an inventory search of the truck prior to its being towed from the

scene; he discovered an empty six-pack and six empty beer bottles in it. In the sally port at

the sheriff’s office, Lyle asked Burr if he would submit to field-sobriety tests. Burr replied that

he would. Lyle testified that Burr failed all the tests that were administered—the

horizontal-gaze-nystagmus, the walk-and-turn, and the one-leg-stand test—and that failure

of the first two indicated intoxication. Lyle then took Burr to the blood-alcohol-content

room to begin a 20-minute observation of him prior to administration of the BAC test and

read Burr his implied-consent rights from a form. On the form, Burr acknowledged being

read his rights and agreed to take the breath test. Lyle did not offer him a urine or blood test.

After 20 minutes, Burr blew into the BAC machine three times but failed to “follow

directions” and did not give enough of a sample to register. Although the form indicated that

Burr requested another test at his own expense, no other test was administered because Lyle

understood it to be available only after he had “taken the officer’s test.” Burr was booked at

the jail, and Lyle overheard him tell a deputy that he would beat the charge like he had

before.

          Burr asks that we overrule Tiller v. State, 2014 Ark. App. 431, 439 S.W.3d 705, in

which the appellant argued that she had the constitutional right to refuse to take a breath test

because it was a warrantless search in contravention of the Fourth Amendment and in which

we held that section 5-65-202 is an exception to the warrant requirement. Burr argues that

the nonrevocableness of our implied-consent law is problematic and that state statutes cannot

allow for the criminalization of a person’s exercising a federal constitutional right under the


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Fourth Amendment. He also argues that an additional problem in his case is that he did not

have the physical ability to perform the breath test.

       We agree with the State that not all of Burr’s arguments are preserved for appellate

review. He claimed in the circuit court that our statutes violate McNeely, 133 S. Ct. 1552,

and that he had a right to withdraw his implied consent to any chemical testing under the

statute and the Fourth Amendment. He also argued that the implied- consent statute could

not supply the consent necessary under the Fourth Amendment, notwithstanding our holding

to the contrary in Tiller, 2014 Ark. App. 431, 439 S.W.3d 705.4 He did not argue, as he does

on appeal, that the statute violated due process, see State v. Trahan, 870 N.W.2d 396 (Minn.

App.), review granted, No. A13-0931 (Minn. 2015); that criminalizing the exercise of a

constitutional right is impermissible under cases such as Camara v. Municipal Court of the City

and County of San Francisco, 387 U.S. 523 (1967); or that implied consent to a breath test is

otherwise “unreasonable” under the Fourth Amendment. We will consider on appeal only

specific constitutional arguments that were raised and developed below. E.g., Raymond v.

State, 354 Ark. 157, 162, 118 S.W.3d 567, 571 (2003). Because appellant did not argue

impermissible criminalization of the exercise of a constitutional right, due process, or general

unreasonableness below, the claims are not preserved, and we need not address them. Nor

will we consider his undeveloped assertion that his physical inability to take the breath test

due to a medical problem is relevant to his constitutional claim. We find no merit to Burr’s


       4
        Although Burr argues on appeal that Tiller should be overruled, Tiller did not involve
the constitutionality of our refusal-to-submit statute, the issue in the present case. We find
it unnecessary to revisit our decision.

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remaining arguments.

        We apply familiar standards when considering a constitutional challenge to a statute.

Statutes are presumed constitutional, and the burden of proving otherwise is on the party

challenging them. Because of their presumption of constitutionality, statutes should not be

deemed unconstitutional unless the conflict with the constitution is “clear and unmistakable.”

Akers v. State, 2015 Ark. App. 352, at 5, 464 S.W.3d 483, 487. In accordance with these

governing standards, we reject Burr’s constitutional argument.

        Burr’s reliance on McNeely is mistaken. There, after an arrestee in a DWI case refused

to consent to a blood draw for purposes of measuring his blood-alcohol content, officers had

his blood drawn without obtaining a warrant. McNeely, 133 S. Ct. at 1556–57. The narrow

issue in the case was “whether the natural dissipation of alcohol in the bloodstream establishes

a per se exigency that suffices on its own to justify an exception to the [Fourth Amendment’s]

warrant requirement for nonconsensual blood testing in drunk-driving cases.” Id. at 1558.

The Court held that the answer was no and that exigency had to be decided on a case-by-case

basis. It also noted that because the case had been argued “on the broad proposition that

drunk-driving cases present a per se exigency” the Court had not been provided with “an

adequate analytic framework for a detailed discussion of all the relevant factors that can be

taken into account in determining the reasonableness of acting without a warrant.” Id. at

1568.

        McNeely does not stand for the proposition that a warrant is always required in

nonexigent circumstances in order to obtain a chemical sample from an arrestee who has not


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expressly consented. Even if McNeely did hold as Burr alleges, the Arkansas statutes he

challenges would not run afoul of it. In contrast to the nonconsensual blood draw of McNeely,

section 5-65-205(a)(1) prohibits administering a chemical test when an arrestee explicitly

refuses, and no compelled chemical testing was administered after Burr refused. Moreover,

to the extent that McNeely spoke on the issue litigated here, it did so contrary to Burr’s claim.

A plurality of the Court noted the availability of a “broad range of legal tools . . . to secure

BAC evidence” other than warrantless blood draws, including “implied consent laws” in all

50 states that “require motorists, as a condition of operating a motor vehicle within the State,

to consent to BAC testing if they are arrested or otherwise detained on suspicion of a

drunk-driving offense[ ]” and the adverse inference that could be drawn in subsequent

prosecutions from the refusal to submit to such tests. Id. at 1566 (plurality). In sum, sections

5-65-202(a)(3) and 5-65-205(a)(2) do not clearly and unmistakably conflict with the holding

of McNeely, and we reject Burr’s constitutional challenge premised on it.

       Were we to reach Burr’s Fourth Amendment argument regarding reasonableness, we

would still affirm. “The touchstone of the Fourth Amendment is reasonableness,” United

States v. Knights, 534 U.S. 112, 118 (2001), and determining whether a search is reasonable

requires an examination of the totality of the circumstances, with an assessment of “the degree

to which it intrudes upon an individual’s privacy and . . . the degree to which it is needed for

the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848

(2006) (citations and quotations omitted).

       Burr cites Williams v. State, 167 So. 3d 483 (Fla. Dist. Ct. App.), review granted, No.


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SC15-1417, 2015 WL 9594290 (Fla. Dec. 30, 2015), a case similar to his because Williams

refused to submit to a warrantless breath test to determine his blood-alcohol content and was

convicted under Florida’s refusal-to-submit statute. Williams argued that Florida’s refusal-to-

submit statute was unconstitutional as applied. 167 So. 3d at 485–86. The District Court of

Appeal of Florida, Fifth District, held that it is not unconstitutional to punish a person

criminally for refusing to submit to a breath-alcohol test and that a warrantless breath-alcohol

test “is constitutional because it satisfies the reasonableness requirement of the Fourth

Amendment.” 167 So. 3d at 492. The court balanced the State’s legitimate interest in

decreasing and prosecuting drunk driving against the intrusion on Williams’s privacy. 167 So.

3d at 493. The court found that the State had a compelling interest in “protecting lives,

securing the safety of our public roads, and deterring drivers from operating vehicles while

intoxicated” and that breath tests are minimally intrusive and reveal nothing more than the

level of alcohol in a person’s bloodstream. 167 So. 3d at 493–94 (internal citation omitted).

It found that Williams had a diminished expectation of privacy, in part because he was driving

an automobile on a public road and had been arrested based on probable cause for driving

under the influence. 167 So. 3d at 494. Under this balancing test, the court concluded that

“a post-arrest warrantless breath-alcohol test would have been permissible under the Fourth

Amendment.” Because a warrantless breath test would have been reasonable under the

totality of the circumstances, the court concluded that Williams had no Fourth Amendment

right to refuse the test and that the State was not constitutionally barred from criminally

punishing him for the refusal.


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       In the present case, Burr asserts that “the Arkansas implied consent law, as it applies

to criminalizing the refusal of a person for invoking their Fourth Amendment rights, should

be declared unconstitutional ‘as applied.’” Apparently distinguishing his case from Williams,

he argues that because of the medical problem with his ears, he did not have the physical

ability to blow into the breath-test machine without suffering serious pain.

       Section 5-65-202(a)(3) authorizes chemical testing upon arrest only when there is

reasonable cause to believe that the driver has been operating a vehicle while intoxicated or

with an alcohol concentration in the blood or breath in excess of .08 percent. Thus, a person

is already in custody on a finding of reasonable cause when a test is authorized and arrestees

have a reduced expectation of privacy. E.g., Maryland v. King, 133 S. Ct. 1958, 1978 (2013).

One of the tests that the circuit court concluded appellant failed to submit to was a breath test.

Although a breath test is a search, it is not a particularly intrusive one and does not involve

risk to an arrestee. See, e.g., id. at 1969, 1979 (considering intrusiveness and threat to safety

and health of a test in determining reasonableness); cf. McNeely, 133 S. Ct. at 1565 (plurality)

(emphasizing the “compelled intrusion into the human body” from the blood draw that was

at issue). Moreover, the United States Supreme Court has long held that drivers have a

diminished expectation of privacy given the pervasive regulation of motorists. See, e.g., New

York v. Class, 475 U.S. 106, 112–13 (1986). That privacy is even further reduced in light of

the notice to drivers in section 5-65-202(a)(3) that they are subject to chemical testing if they

are arrested for DWI. The United States Supreme Court also has repeatedly recognized that

the states have a compelling interest in combating drunk driving. See, e.g., Mich. Dep’t of State


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Police v. Sitz, 496 U.S. 444, 451 (1990).

       In view of Burr’s arrest on reasonable cause, the reduced expectation of privacy as a

motorist and an arrestee, the minimal intrusiveness of a breath test, and the compelling interest

in combating drunk driving, it simply cannot be said that the implied-consent statute clearly

and unmistakably violates the Fourth Amendment. See, e.g., State v. Birchfield, 858 N.W.2d

302, 309–10 (N.D.), cert. granted, 136 S. Ct. 614 (2015); see also, e.g., Beylund v. Levi, 859

N.W.2d 403, 412–14 (N.D.), cert. granted, 136 S. Ct. 614 (2015). We reject Burr’s request

to reverse his conviction for refusal to take chemical tests on the basis of unconstitutionality

as applied. We also reject his request to reverse and dismiss his DWI conviction on the basis

that his refusal to take a chemical test was used to show consciousness of guilt.5 He has not

shown that Arkansas Code Annotated section 5-65-205 is unconstitutional, and the circuit

court properly considered his refusal to submit along with other evidence of his DWI. See

McNeely, 133 S. Ct. at 1566 (plurality) (noting that an adverse inference could be drawn in

subsequent prosecutions from the refusal to submit to such tests).

           We note a scrivener’s error in the circuit court’s sentencing order, which shows a

finding of guilty on Arkansas Code Annotated section “5-65-205 Violation of Implied

Consent Law.” This is a confusion of code sections and titles. See Ark. Code Ann. §§ 5-65-

205, entitled Refusal to submit to a chemical test, and 5-65-202, entitled Implied consent. The Pea

Ridge Police Department’s citation order correctly lists the offense as 5-65-205, Refusal to

Submit, as does the finding of guilt shown on the district court’s worksheet. Additionally, the

       5
         It is not entirely clear whether the circuit court also considered the implied-consent
statute in finding Burr guilty of DWI.
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circuit court orally pronounced Burr guilty of refusal to submit at the conclusion of his trial.

We remand to the circuit court to correct the sentencing order to show a conviction under

section 5-65-205, “Refusal to submit to a chemical test.”

       Affirmed; remanded for correction of sentencing order.

       ABRAMSON and VAUGHT, JJ., agree.

       Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.

       Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.




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