The opinion
Tom Glaze, Justice, dissenting. This court’s refusal to review appellee Michael Aud’s case on appeal will produce dire future consequences in the trying of DWI cases across the state. The trial judge who acquitted Mr. Aud was well aware that, in doing so, his interpretation of Ark. Code Ann. § 5-65-103 (Repl. 1997), 1 would invite “more and more experts” to testify, challenging the validity of blood-alcohol content tests. Under this court’s prior cases, the court has held this 1983 statute has made driving with a blood alcohol content of .10% or more illegal, per se. Lovell v. State, 283 Ark. 425 , 678 S.W.2d 318 (1984). The Lovell decision stated that a defendant was innocent until the state proved beyond a reasonable doubt that he or she was driving and that their blood alcohol measurement was .10% or more. Id. at 430 . Until the case now before us, the State sustained its burden by proving that the defendant was driving and that his “blood-alcohol measurement was .10% or more.”
A driver clearly retains the right to question whether the chemical analysis was performed according to methods approved by the Arkansas State Board of Health. See Ark. Code Ann. § 5-65-206 (Repl. 1997). Moreover, the driver also has the right to have a test administered by a physician or qualified technician, registered nurse, or other person qualified to administer a complete chemical test — blood, breath, or urine — in order to question the government’s tests. See Ark. Code Ann. § 5-65-204 (e) (Repl. 1997).
In the instant case, the trial court has added and engrafted another defense to Arkansas’s DWI laws by allowing a purported expert witness 2 to give his opinion questioning the breathalyzer test administered to Mr. Aud, stating that, while Aud’s blood-alcohol measurement was .10% or more, such a measurement does not necessarily mean Aud actually had a blood-alcohol content of .10%. Again, until now, this court has upheld the constitutionality of Arkansas’s DWI laws as a reasonable means of protecting the public safety, and that the State proves its case when it shows that the defendant driving has a blood-alcohol measurement of .10% or more.
The trial court in the present case strongly urged the parties to appeal to determine whether our DWI statutory provisions could be considered and interpreted to permit a defendant’s expert testimony to show that a defendant’s actual blood-alcohol content may differ from the statutory blood-alcohol measurement proved by the State. The trial court’s expressed concern was that, if Mr. Aud prevails on appeal, more and more experts will be employed to offer drivers charged with DWI a defense that was not heretofore provided or recognized. Because the interpretation of this State’s DWI laws will clearly have widespread ramifications and this court’s holding would be important to the correct and uniform administration of our DWI statute, this court should take this on review instead of dodging a very difficult, controversial issue.
Imber, J., joins this dissent. The 2001 Amendment changed the blood-alcohol content threshold to .08%. See Acts 2001, No. 561, § 2. Sections 5-65-206 and 5-65-204(e) referred to herein, infra, have also been modified by Act 561.
The State objected to Mr. Aud’s expert witness because the witness was not qualified to operate a BAC machine.