The opinion
Robert H. Dudley, Justice, dissenting. The majority opinion holds that the result of a valid test of the alcohol content of one’s blood, by weight and volume, is admissible evidence in a civil case. I concur with that substantive statement of law, but respectfully dissent from its procedural application in this case.
Officer McDonald administered the test, but did not testify. Officer Milan was in the room at the time McDonald administered the test. Milan was allowed to testify about the results of the test McDonald administered, even though Milan had no personal recollection of the results and relied on McDonald’s writings for his testimony. This is hearsay testimony. By allowing it in evidence, the appellant was denied cross-examination on two important issues: first, whether McDonald was competent to administer the test and whether the testing machine was properly certified, and second, the manner in which McDonald administered the test and reached the result.
The majority of the members of the Court feel that the hearsay objection was not properly made. If that is correct, the issue is waived. For a complete discussion of our rule and the exceptions to the lack of objections, see Wicks v. State, 270 Ark. 781 at 785 , 606 S.W. 2d 366 (1980).
The appellant objected to “no proper foundation.” “Hearsay” might have been a better objection, but “no proper foundation” was sufficient under these circumstances because the result is that evidence was admitted without showing that the method of testing and the test result were reliable.
Because I feel that the hearsay objection was not waived, I dissent from the majority’s allowing the use of the intoximeter result in this case. However, I concur with the substantive statement of law given in this case.
I am authorized to state that Mr. Justice Purtle joins in this opinion.