# Turner v. State

> Supreme Court of Arkansas · July 7, 1975 · 258 Ark. 425

URL: https://www.frixlaw.com/law-library/cases/9683100

## Case

- **Full name:** Alvin TURNER v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** July 7, 1975
- **Citations:** 258 Ark. 425; 527 S.W.2d 580; 1975 Ark. LEXIS 1648
- **Precedential status:** Published
- **Opinion:** Dissent by Harris
- **Judges:** Fogleman, Harris, Byrd
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683100

## How later opinions describe it (automated extraction)

- concluding that because the doctor who withdrew a blood sample from the defendant “did not act at the direction of, or by prearrangement with, any police officer, the taking of the sample did not constitute an unreasonable search and seizure”

## Opinion text

Carleton Harris, Chief Justice, dissenting. 1 would reverse for the reason that I consider the trial court to have committed reversible error in permitting the testimony concernina; the blood alcohol test administered to appellant.
In my opinion, all blood tests which are the result of arrests occasioned by traffic violations must be administered as provided by Ark. Stat. Ann. § 75-1045 (Supp. 1973). 1
Turner was originally stopped by the officers while driving his vehicle because the officers observed him cross the center line. Upon being stopped, it developed that he did not have a driver’s license and Officer Faris started writing a ticket on that basis. When the officer, according to his testimony, detected an odor of alcohol on Turner, he asked appellant how much he had had to drink, but could not understand Turner’s response, and he then advised appellant that he (the officer) was going to take Turner to El Dorado for a breathalyzer test. The acts culminating in the charge here on appeal thereafter took place.
The statute is set out in the footnote and it will be observed that subsection (a) provides that the tests “shall be administered at the direction of a law enforcement officer” who has reason to believe that the person operating or in control of the vehicle is under the influence of intoxicating liquor. [My emphasis]. To me, this simply means that such tests must be administered at the direction of a law enforcement officer. The majority state that this was not done, but they also say that this statute, including the other provisions which are set out in the footnote, has no applicability unless the tests are administered at the direction of a police officer; in other words, since a police officer did not direct that the tests be administered, the statute does not apply. This, to me, is strange logic. Here, we have a statute which, in my view, commands that blood tests be administered at the direction of such officer, further setting out how the tests shall be administered, and bv whom — but the majority say that since the primary requirement of that very statute (direction of a police officer) was not complied with, none of the provisions apply. In brief, this is the basis of our disagreement, for I contend the statute provides that all tests administered which arise out of a violation of motor vehicle laws must be administered under the direction of a police officer, and if this is not done, the evidence is not admissible. The majority cite the case of Walker v. State, 244 Ark. 1150 , 429 S.W. 2d 121 , but I consider Walker as no authority whatsoever since that case was decided in 1968 and Act 106 of 1969 (§ 75-1045) was not even passed until the year following the Walker decision. Appellant objected that the proper foundation had not been laid for the introduction of the testimony because (1) the test was not made at the direction or request of a law enforcement officer, (2) the method employed for testing was not shown to have been approved by the Arkansas State Health Department, (3) the medical technologist was not shown to have had a permit issued by the State Department of Health, and (4) it was not shown that appellant was advised that he could have an independent test made by a physician, nurse or medical technician. It is apparent that I consider the objection to have been valid and it is my opinion that it should have been sustained. There is no dispute but that (2), (3) and (4) were not complied with.
While the above expresses my reason for dissenting, on the other hand, even taking the view of the majority, I still lean toward reversal for it is not entirely clear to me that Dr. Harper acted independently of the police in ordering the blood sample; of course, unless he acted independently, the taking of the sample constituted an unreasonable search and seizure. Though there is no direct statement that Dr. Harper acted at the direction of a police officer or deputy sheriff, it is clear that law enforcement officers were present when Turner was examined for injuries sustained, and I consider the testimony of Wayne Tubbs, a medical technologist, who testified that he received a sample of Tubbs’ blood and made the test, pertinent to the issue. As to the testimony of Tubbs, the record reflects:
“Q. All right, do you happen to have your report with you on it? Is that a copy of your report?
A. This is a copy of the report that we gave to the sheriffs department when they come and request a report as to our findings. [My emphasis]
Q. The information that was obtained on that report came from your personally?
A. It came from the slip that — the slip of paper that we get with the sample of blood which . . .
Q,. This slip of paper what you call a requisition slip?
A. Right.
Q. This is the thing that they tell what they want performed?
A. That’s right.
Q. All right.
A. The deputy sheriff has to request it for us to do it. Now their name or the trooper or the officer’s name has to be on there for us to do it. The report that you have is from that report.” [My emphasis]
Accordingly, it appears to me that the request for the blood test was made by the sheriff’s department and thus, even under the concept of the majority, the provisions of § 75-1045 apply.
Following the testimony of Tubbs, counsel for appellant stated:
“We would object for an additional reason because he has told us law enforcement has come into play now and he’s based on that request and the law provides that the law enforcement officer has a duty to notify him that he’s entitled to have an independent check.”
Counsel added that appellant was entitled to have another nurse or technician to make an analysis and not having been told that he had this right, the results of the test were inadmissible. This is in line with subsection (3) heretofore quoted, which clearly provides this right to one who is given the tests.
For the reasons herein set out, I would reverse the judgment and accordingly respectfully dissent.
Byrd, J., joins in this dissent. '(a) Any person who operates a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of subsection (c) of this section, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered and such agency shall be responsible for paving all expenses incurred in conducting such test. Provided, if the person tested requests that additional tests be made as authorized in paragraph (3) of subsection (c) of this section, the cost of such additional tests shall be borne by the person tested. Provided further if any person shall object to the taking of his blood for a test as authorized herein, the breath or urine of the person may be used to make the analysis. ***
“(c) (1) Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Arkansas State Board of Health.
(2) When a person shall submit to a blood test at the request of a law-enforcement officer under the provisions of this Section, only a physician, a registered nurse or a registered laboratory technician or technologist may withdraw blood for the purpose of determining alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens. Provided, that no physician, registered nurse, or registered laboratory technician or technologist in this State who withdraws blood for the purpose of determining alcoholic content thereof at the request of a law enforcement officer under the provisions of this Section shall be held liable for violating tiny of the criminal laws of this State in connection therewith, nor shall any doctor, nurse or registered laboratory technician or technologist be held liable in tort for the withdrawal of such blood unless such persons are negligent in connection therewith, or unless the blood is taken over the objections of the suspect.
(3) The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete (chemical) test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit the person to obtain such test or tests when such person desires to have such test or tests shall preclude the admission of evidence relating to the test or tests (taken) at the direction of a law enforcement officer.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683100. Public record. Not legal advice.