                                  Cite as 2015 Ark. App. 364

                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No. CR-14-947


WILLIAM BRIGGS                                    Opinion Delivered   JUNE 3, 2015
                               APPELLANT
                                                  APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT, FIRST
                                                  DIVISION
                                                  [NO. 60CR-13-1580]
STATE OF ARKANSAS
                                  APPELLEE        HONORABLE LEON JOHNSON,
                                                  JUDGE

                                                  AFFIRMED



                               DAVID M. GLOVER, Judge

       William Briggs was tried by the court and found guilty of the offense of DWI-first

offense. He appeals, contending the trial court erred 1) in admitting the Intoximeter results

because he did not receive his requested second test and 2) in finding sufficient evidence to

support the conviction. We affirm.

       At 1:55 a.m. on August 16, 2012, Trooper Alan Johnson of the Arkansas State Police

was sent to investigate a single-vehicle incident involving a car reportedly on fire off I-530.

Upon arriving at the scene, Trooper Johnson found Briggs, who told him the vehicle was his

and that he had been driving it. Trooper Johnson testified the vehicle was engulfed in flames;

Briggs was “a little unsteady” and had the odor of intoxicants; and Briggs reported the accident

occurred because he swerved to miss an animal on the road. Trooper Johnson explained his

investigation of the scene did not support Briggs’s explanation; it was more supportive of the
                                     Cite as 2015 Ark. App. 364

car missing the exit and Briggs losing control in trying to correct; and there was no evidence

of braking or other indications of avoidance maneuvers to miss an animal. He stated he did

not conduct an investigation to determine the cause of the fire, but it was very dry in the area.

According to Trooper Johnson, the circumstances of the vehicle collision, his observations of

Briggs’s unsteadiness, and the odor of intoxicants caused him to believe further DWI tests were

indicated. Briggs was very cooperative, and Trooper Johnson took Briggs to the Sherwood

Police Department to conduct a DWI investigation involving an Intoximeter instrument,

which Trooper Johnson was certified to perform.

       He stated it did not take him long to get to the scene of the accident because he was

in the area looking for a subject about whom they had received a report of intoxication from

a taxi-cab driver; the driver had reported he had dropped a passenger off and felt the subject

was too intoxicated to drive; and when he received the report on the vehicle incident, he

considered Briggs might be the person reported by the taxi driver. Trooper Johnson stated

that because of Briggs’s age (77), “some particular ailments which prevent[ed] a full battery of

[field sobriety tests],” and the fact that Briggs had been involved in the vehicle accident, he did

not think the field-sobriety types of tests would be effective, and the tests could not be

conducted safely at that location.

       He further explained how he informs subjects of the rules and their rights before

administering a breathalyzer test, i.e., reading the form, getting verbal responses, and having

the subject initial paragraphs indicating his or her understanding and consent to the test. He

testified that Briggs seemed to understand everything being explained to him and agreed to


                                                 2
                                    Cite as 2015 Ark. App. 364

take the test. He identified State’s Exhibit 1, which was a copy of the rights form Briggs

signed.

          He testified the form showed Briggs was informed of his right to a second test, and

Briggs indicated the desire for one. Trooper Johnson also acknowledged that he knew he was

obligated to provide Briggs with reasonable assistance in getting the second test. He candidly

admitted he did not specifically recall his conversation with Briggs but explained he has

conducted over 800 breathalyzer tests. He testified it is his practice always to tell subjects who

are being released from the facility late at night, which was true of Briggs, that such tests will

have to be conducted at a hospital emergency room, and the additional testing will be at the

subject’s expense. He stated that he did not take Briggs to get another test when Briggs was

released; he took Briggs to his house located “somewhere off Roosevelt.”

          Defense counsel objected to the introduction of the breathalyzer-test results, arguing

that Arkansas Code Annotated section 5-65-204(e) “precludes admittance of the BAC if—if

the Defendant requests a second test. He did request a second test. The second test wasn’t

given to him; therefore, we ask that we—we ask that the BAC results not be admitted in this

case.” The State responded that Trooper Johnson had explained if a subject wants a second

test, and they have the funds to take the second test, they get the second test; the fact that

Trooper Johnson took Briggs home indicated Briggs did not have the funds; and there is no

requirement that the officer provide anything more than reasonable assistance in taking the

second test. The State emphasized that reasonable assistance does not require an officer to pay

for the subject’s additional tests—that a second test would have been at Briggs’s own expense.


                                                3
                                   Cite as 2015 Ark. App. 364

Defense counsel countered by arguing that Trooper Johnson could have assisted Briggs by

taking him to an ATM or to his family and helped him get the money. The trial court

explained substantial compliance is what is required under the statute and overruled the

objection.

       The results of the breathalyzer test showed a final result of .09. Trooper Johnson

explained he arrived on the scene at 1:55 a.m.; arrived at the Sherwood station at

approximately 2:50 a.m.; the first test was administered at 2:53 a.m.; the original sample was

.099; and the second one, taken two minutes later, was .102. He stated a rise of that nature

would be impossible; Briggs would have had to drink in the back of the police car or at the

police station within that hour; the first time he ever heard of Briggs taking a bottle out of his

vehicle to drink while his car was burning was at the district-court level; and Briggs never told

him that on the night in question. Trooper Johnson also explained further that typical

reactions in trying to avoid something on the road are to brake, leaving skid marks, or to

swerve, causing a “yawl,” which happens when the vehicle is still traveling in a forward

momentum but sideways. He testified neither of those marks was found at the scene. The

State rested its case, and Briggs moved for a directed verdict, which was denied.

       First, we address Briggs’s second argument, which challenges the sufficiency of the

evidence supporting his conviction for DWI-first offense. We examine challenges to the

sufficiency of the evidence, before examining trial error, because of the prohibitions against

double jeopardy. Watkins v. State, 2010 Ark. App. 85, 377 S.W.3d 286. In addressing

challenges to the sufficiency of the evidence, we review the evidence in the light most


                                                4
                                  Cite as 2015 Ark. App. 364

favorable to the State as the prevailing party, and affirm if the conviction is supported by

substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and

character that it will, with reasonable certainty, compel a conclusion one way or the other,

without resort to speculation or conjecture. Id.

       In challenging the sufficiency of the evidence, Briggs essentially contends that because

the breathalyzer results should have been excluded (his remaining argument), the evidence

does not support his conviction. However, in reviewing a challenge to the sufficiency of

evidence, we examine all of the evidence submitted before addressing alleged trial error. Id.

Here, the evidence established Briggs was driving the vehicle; he exhibited unsteadiness and

the odor of intoxicants; he was administered a breathalyzer test; and the breathalyzer results

showed intoxication. Those circumstances constitute substantial evidence of DWI.

       For his remaining point, Briggs contends that the trial court erred in admitting the

Intoximeter results because he did not receive his requested second test. We disagree.

       At the time of the offense, Arkansas Code Annotated section 5-65-204(e) (Repl. 2005)

provided:

               (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

                                              5
                                   Cite as 2015 Ark. App. 364

       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.

Our court explained the applicable burden of proof and standard of review with respect to this

statute in Ebel v. State, 2014 Ark. App. 588, at 2, 445 S.W.3d 553, 554:

               When a defendant moves to exclude a test pursuant to section 5-65-204(e)(2),
       the State bears the burden of proving by a preponderance of the evidence that the
       defendant was advised of his right to have an additional test performed and that he was
       assisted in obtaining a test. The initial test result may be admitted into evidence if there
       was substantial compliance with the statute. Furthermore, the officer must provide
       only such assistance in obtaining an additional test as is reasonable under the
       circumstances presented. Whether the assistance provided was reasonable under the
       circumstances is ordinarily a fact question for the trial court to decide. It is for the trial
       court to weigh the evidence and resolve the credibility of the witnesses. We will not
       reverse the trial court’s ruling on the admission of evidence absent an abuse of
       discretion and a showing of prejudice.

(Internal citations omitted.)

       In Ebel, our court affirmed the trial court’s ruling that the officer’s actions constituted

reasonable assistance and substantial compliance with the statute. After a breathalyzer test was

administered on Ebel at the sheriff’s office, he requested a second test and stated he had the

means to pay for it. The officer transported Ebel to the hospital, where his debit card was

declined twice. The officer denied Ebel’s request to call his parents, who lived in another

town, and have them bring money to the hospital. We explained that the officer had no duty

to allow Ebel to call his parents to bring money, and we found no clear error in the trial

court’s finding that the officer’s actions constituted reasonable assistance under the

circumstances and in its determination that the officer substantially complied with the statute.

       Briggs contends that Trooper Johnson “was not able to testify to any assistance that was

                                                 6
                                   Cite as 2015 Ark. App. 364

given,” “[n]o phone calls, no telephone books, no information regarding local hospitals or

payments, and most importantly according to this Court, no transportation”; and that Trooper

Johnson testified as to his regular practices and procedures, but could not testify with any

specificity regarding his interaction with Briggs other than recalling he drove Briggs home.

Consequently, Briggs concludes that the trial court erred in allowing the breathalyzer test

results into evidence. We disagree.

       We find no clear error in the trial court’s finding that Trooper Johnson substantially

complied with the statutory requirements for providing reasonable assistance under the

circumstances in obtaining a second test.           We applaud Trooper Johnson’s candor in

acknowledging he could not remember the specifics of his conversation with Briggs, but

explaining his standard practice in dealing with over 800 such situations is to advise the subject

of his right to obtain a second test verbally and in writing, which was established with the

introduction of the rights form signed by Briggs; to explain that the cost of a second test is the

subject’s responsibility; and upon release from custody late at night, which was true in Briggs’s

situation, to advise subjects that due to the late hour a second test would need to be

administered at the local emergency room. We do not agree under the circumstances

presented here that “reasonable assistance” required Trooper Johnson to chauffeur Briggs to

an ATM or to his family to get money to pay for the second test.

       Affirmed.

       ABRAMSON and BROWN, JJ., agree.




                                                7
                                 Cite as 2015 Ark. App. 364

      Llewellyn J. Marczuk, Deputy Public Defender, by: Mary Kathryn Williams, Deputy Public
Defender, for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




                                             8
