Opinion
No. CR–17–76
04-26-2018
Sammy W. DORTCH, Jr., Appellant v. STATE of Arkansas, Appellee
Jeremy B. Lowrey ; and Larry Dean Kissee, Ash Flat, for appellant. Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
Jeremy B. Lowrey ; and Larry Dean Kissee, Ash Flat, for appellant.
Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
KAREN R. BAKER, Associate Justice
An Independence County jury found appellant Sammy W. Dortch, Jr., guilty of negligent homicide, driving while intoxicated, and reckless driving. Dortch was sentenced to a total of fifteen years' imprisonment, an $8,000 fine, and suspension of his driver's license for 120 days. On October 23, 2017, the Arkansas Court of Appeals certified the appeal to this court pursuant Arkansas Supreme Court Rule 1–2(b)(1), (3), (4), (5), and (6) because this appeal involves (1) issues of first impression; (2) issues involving federal constitutional interpretation; (3) issues of substantial public interest; (4) significant issues needing clarification or development of the law, or overruling precedent; and (5) substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly. On November 9, 2017, we accepted certification of this appeal. We reverse and remand.
Dortch's convictions stem from the following facts. On September 16, 2015, Dortch and his friend Matthew Anderson went to U.S. Pizza in Batesville for lunch. Tara Hall waited on Dortch and Anderson and testified that Dortch was served two beers—a Shiner Bock in a regular size mug and a Lagunitas IPA "Big Earl," which is approximately twice the size of a regular mug. Dortch testified that the "Big Earl" was purchased for Anderson. Ms. Hall did not see either Dortch or Anderson drink the beers. After leaving U.S. Pizza, Dortch and Anderson went to Beef O' Brady's. The receipt from Beef O' Brady's showed that Dortch purchased three beers. However, Dortch testified that he only drank two of the beers while Anderson drank one. After leaving Beef O' Brady's, Dortch and Anderson went to Stanley Wood Chevrolet and checked out a 2011 black Chevrolet Camaro to test drive. The pair headed to Vista Point Drive where Dortch lost control of the vehicle and the vehicle flipped upside down. In response to dispatch, Deputy Aaron Moody with the Independence County Sheriff's Office was the first to arrive on the scene of the crash. Deputy Moody testified that the vehicle was upside down, and Dortch was standing outside the vehicle. Dortch told Deputy Moody that Anderson was still inside the car and unconscious. Deputy Moody testified that Anderson was still in the passenger seat of the vehicle, upside down with his seatbelt on. Deputy Moody was unable to detect Anderson's brachial pulse, so he left Anderson until first responders arrived. Deputy Moody noticed that Dortch had bloodshot, watery eyes and smelled of intoxicants. Anderson was pronounced dead at the scene by the county coroner. Dortch admitted that he and Anderson had consumed beers together. Deputy Moody concluded that a blood draw was necessary because the accident resulted in a fatality and that Dortch was suspected of driving while intoxicated. Deputy Moody transported Dortch to the emergency room at the White River Medical Center for a blood draw. There, Deputy Moody went over a standard form outlining Arkansas's implied-consent law. The form stated that if he refused to take the test, "none will be given, but you will subject yourself to the penalties provided by law, which includes, but is not limited to, the suspension or revocation of your driving privileges." Dortch signed and initialed the form and a blood draw was performed by a registered nurse. At no point was a warrant obtained for the blood draw. Based on the results of the blood draw, the state crime lab calculated Dortch's blood alcohol level at .139.
Trial testimony established that a regular mug holds 16 ounces, while a "Big Earl" holds approximately 32 ounces.
On January 8, 2016, Dortch was charged by felony information with negligent homicide. On February 2, 2016, Dortch was charged by an amended felony information with the additional charges of driving while intoxicated and reckless driving. On September 6, 2016, Dortch filed his motion to suppress chemical evidence from his blood draw and a motion to declare unconstitutional the implied-consent statute, Arkansas Code Annotated section 5–65–202(a)(2), and the mandatory-chemical-testing statute, Arkansas Code Annotated section 5–65–208, which requires chemical testing if an accident results in a fatality. Dortch argued that these statutory provisions violated the Fourth Amendment pursuant to a then recent United States Supreme Court decision, Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). The circuit court denied Dortch's motion to suppress his blood draw, finding that Dortch impliedly consented to the warrantless blood draw. Further, the circuit court found that Dortch consented to the blood draw and that the consent was voluntary. The circuit court denied Dortch's motion to declare Arkansas Code Annotated sections 5–65–202(a)(2) and 5–65–208 unconstitutional.As noted above, a jury trial was held and Dortch was convicted of negligent homicide, driving while intoxicated, and reckless driving. On October 28, 2016, Dortch timely filed his notice of appeal. On appeal, Dortch argues that (1) the prosecution presented insufficient evidence of his guilt of negligent homicide; (2) Arkansas Code Annotated sections 5–65–202(a)(2) and 5–65–208 are unconstitutional and therefore his blood draw pursuant to these statutes was required to be suppressed; (3) because Anderson's cause of death was not patently apparent, the circuit court erred in permitting the coroner to testify as to Anderson's cause of death; (4) the failure of the coroner to obtain an autopsy and preserve evidence of the cause of Anderson's death affirmatively prejudiced Dortch's ability to present a defense in this case; (5) the circuit court erred in not permitting rebuttal testimony to correct the State's repeated mischaracterization of the evidence relating to Dortch's alcohol consumption, and in not addressing the prosecution's misstatements of fact; and (6) the list of errors asserted here are such that reversal should be granted because of their cumulative effect.
I. Sufficiency of the Evidence
On appeal, Dortch argues that there was insufficient evidence of his guilt of negligent homicide because the State failed to prove that he caused Anderson's death as required by Arkansas Code Annotated section 5–10–105(a)(1) (Repl. 2013). Although Dortch raised this issue as his last point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. Jones v. State , 349 Ark. 331, 78 S.W.3d 104 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Edmond v. State , 351 Ark. 495, 95 S.W.3d 789 (2003). We will affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
With regard to sufficiency-of-the-evidence challenges, Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of all of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
....(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection[ ] (a) ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.
Ark. R. Crim. P. 33.1. Rule 33.1 is to be strictly construed. Carey v. State , 365 Ark. 379, 230 S.W.3d 553 (2006) (citing Pinell v. State , 364 Ark. 353, 219 S.W.3d 168 (2005) ). Accordingly, in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict, both at the close of the State's case and at the end of all the evidence, that advises the circuit court of the exact element of the crime that the State has failed to prove. Id. (citing Grady v. State , 350 Ark. 160, 85 S.W.3d 531 (2002) ). The reason underlying the requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion or, if justice requires, of allowing the State to reopen its case and supply the missing proof. Id. (citing Webb v. State , 327 Ark. 51, 938 S.W.2d 806 (1997) ). A general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Id. (citing Beavers v. State , 345 Ark. 291, 46 S.W.3d 532 (2001) ).
Here, Dortch's challenge to the sufficiency of the evidence is not preserved for our review. At trial, Dortch's counsel made a generic directed-verdict motion and renewed motion, which the circuit court denied:
DEFENSE COUNSEL : Judge, two things. At this time the State has rested and we'll move for a directed verdict of not guilty. And I realize that the Court has ruled on these previously but since all of the evidence is in, we'd again allege that the chain of custody was improper in this matter for the blood samples. And also, as far as the State Crime Lab test to come in, there were so many irregular procedures and defects with that test to where it's not—should not be given any weight. That's the scope of it.
....
COURT : The Court's ruling would be the same as previously made on the chain of custody issue and the—the blood test. As you mentioned, it goes to the weight and the weight is determined by the jury.
The Court finds that there is sufficient evidence that's been presented by the State to withstand a motion for directed verdict on all three counts. And it'll just be up to the jury to determine the credibility of the witnesses and the weight to be given the evidence. So, the motions for directed verdict will be denied.
....
DEFENSE COUNSEL : I'd just renew my motions for a directed verdict at the close of all of the evidence, Judge. Same—
PROSECUTOR : Same response.
DEFENSE COUNSEL : —same grounds. PROSECUTOR : Same response.
COURT : The motion will be denied based on the Court's previous ruling.
On appeal, Dortch admits that his directed-verdict motion was general in nature. However, Dortch contends that his insufficiency argument was preserved for appellate review because the State expressly raised the elements of the offense and the circuit court ruled. We disagree. In order to preserve a challenge to the sufficiency of the evidence, Rule 33.1(c) clearly places the burden on the defendant to state the specific grounds. While Dortch made a motion for directed verdict at the close of the State's case and renewed his motion at the close of the evidence, his motion did not comply with the dictates of Rule 33.1. Dortch's motion was general in nature and lacked the requisite specificity required by Rule 33.1. Stated differently, because Dortch's motion was general and not specific, his motion was inadequate to preserve for appellate review the specific challenges to the sufficiency of the evidence he now raises on appeal. Accordingly, we affirm on this point.II. Motion to Suppress and Motion to Declare Ark. Code Ann. §§ 5–65–202(a)(2) & 5–65–208 Unconstitutional
For his second point on appeal, Dortch argues that, under Arkansas Code Annotated section 5–65–208, warrantless searches requiring drivers involved in an accident to submit to blood-alcohol testing violate the Fourth Amendment's prohibition on unreasonable searches. In response, the State argues that we should not address any argument pertaining to section 5–65–208. The State contends that although the circuit court denied Dortch's motion to declare this provision unconstitutional, the circuit court did not actually analyze or rule on the constitutionality of section 5–65–208 because it concluded that Dortch had impliedly and actually consented to the blood draw. We agree. Here, the circuit court's September 27, 2016 written order merely denied Dortch's motion to declare Arkansas Code Annotated sections 5–65–202(a)(2) and 5–65–208 unconstitutional. The circuit court's ruling authorizing the admission of evidence obtained from Dortch's blood draw did not require the circuit court to apply or consider section 5–65–208. The circuit court's order specifically found:
We note that Arkansas Code Annotated section 5–65–208 was amended in 2017. The word "blood" preceding "breath" in (a) and (b)(2)(A) was deleted and (d) was added, which now requires a warrant based on probable cause for a blood draw under this section. However, the law that controls is the substantive law in effect on the date the crime was committed. Wood v. State , 2015 Ark. 477, 478 S.W.3d 194 (2015) (citing Berry v. State , 278 Ark. 578, 582, 647 S.W.2d 453, 456 (1983) ).
The 2015 version of Ark. Code Ann. § 5–65–208 stated in its entirety:
(a) When the driver of a motor vehicle or operator of a motorboat on the waters of this state is involved in an accident resulting in loss of human life or when there is reason to believe death may result, a chemical test of the driver's or operator's blood, breath, saliva, or urine shall be administered to the driver or operator, even if he or she is fatally injured, to determine the presence of and percentage of alcohol concentration or the presence of a controlled substance, or both, in the driver's or operator's body.
(b)(1) A chemical test under this section shall be ordered as soon as practicable by one (1) of the following persons or agencies:
(A) The law enforcement agency investigating the accident;
(B) The physician in attendance; or
(C) Other person designated by state law.
(2)(A) The person who conducts the chemical test of the driver's or operator's blood, breath, saliva, or urine under this section shall forward the results of the chemical test to the Department of Arkansas State Police, and the department shall establish and maintain the results of the chemical tests required by subsection (a) of this section in a database.
(B) The information in the database shall reflect the number of fatal motor vehicle accidents in which:
(i) Alcohol was found to be a factor, including the percentage of alcohol concentration involved;
(ii) Controlled substances were found to be a factor, including a list of the controlled substances found, the specific class of the controlled substance, and the amount; and
(iii) Both alcohol and a controlled substance were found to be factors, including the percentage of alcohol concentration involved, as well as a list of the controlled substances found and the amount.
(c) The result of a chemical test required by this section shall be reported to the department and may be used by state and local officials for:
(1) Statistical purposes that do not reveal the identity of the deceased person; or
(2) Any law enforcement purpose, including prosecution for the violation of any law.
Ark. Code Ann. § 5–65–208 (Supp. 2015).
1. That the Defendant is charged with Negligent Homicide, a Class B felony,
DWI, and Reckless Driving. That on September 16, 2016, the Defendant was involved in a one-vehicle accident that resulted in the death of the passenger of the vehicle. That the Defendant was taken to the White River Medical Center in Batesville, Arkansas by Deputy Aaron Moody of the Independence County Sheriff's Department. That the Defendant was advised of the implied consent law and the consequences of refusal to take a chemical test as contained in the Arkansas Statement of Rights Form.
2. That the recent case of Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) found constitutional the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Furthermore, the Birchfield Court stated, "[i]t is well established that a search is reasonable when the subject consents, e.g. , Schneckloth v. Bustamonte , ... and that sometimes consent to a search need not be express but may fairly be inferred from context," 136 S.Ct. at 2185 [internal citations omitted]. Birchfield was explicit in holding that the warrantless taking of a blood sample pursuant to implied consent—where those implied consent laws impose civil penalties and evidentiary consequences on motorists who refused to comply—was not constitutionally questionable. 136 S.Ct. at 2185. On the other hand, should a state, "not only insist upon an intrusive blood test, but also ... impose criminal penalties on the refusal to submit to such test," the Court held that such violated the Fourth Amendment to the United States Constitution.
....
4. That in Arkansas, refusal to submit is a violation, which subjected Arkansas motorists to a civil administrative penalty of suspension or revocation of driving privileges. Thus, the blood draw from the Defendant did not implicate the Fourth Amendment.
5. That the Defendant was apprised of the implied consent law and the consequences of refusal to submit to a chemical test. He voluntarily signed the form indicating that he would take the test. No coercion or deceit has been alleged by the Defendant or proven. The United States Supreme Court has made clear that Fourth Amendment consent need only be voluntary, not knowing and intelligent. Schneckloth v. Bustamonte , 412 U.S. 218, 241, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Knowing and intelligent waiver of rights is primarily applied to constitutional rights necessary to preserve a fair trial. Id. at 237, 93 S.Ct. 2041.
6. That Defendant gave his consent to the blood draw. The consent was voluntary. Consent is a valid exception to the warrant requirement.
7. That any evidence obtained from the blood draw of the Defendant and subsequent test results are admissible and do not violate the U.S. Constitution or Arkansas Constitution.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Pickering v. State , 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the superiority of the circuit judge to evaluate the credibility of witnesses who testify at a suppression hearing. Id.
We begin our analysis with the Fourth Amendment which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. The United States Supreme Court has held that the compulsory administration of a blood test constitutes a search and is thus subject to the constraints of the Fourth Amendment. Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Court has held that "[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing ... reasonableness generally requires the obtaining of a judicial warrant." Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ). A warrantless search of a person is reasonable only if it falls within a recognized exception to the warrant requirement. Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
A. Implied Consent
In Birchfield , the Court addressed the constitutionality of a blood draw on the basis of statutory implied consent, as well as whether a blood draw can be justified as a search incident to arrest. The issue before the Birchfield court was "whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream." 136 S.Ct. at 2172. The Court concluded that "the Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving" but does not permit warrantless blood tests incident to arrest for drunk driving. Id. at 2184. Additionally, the Court concluded "that motorists cannot be deemed to have consented to submit to a blood test [by virtue of an implied-consent statute] on pain of committing a criminal offense." Id. at 2186.
In Birchfield , the Court first considered whether the warrantless "search-incident-to-arrest" doctrine applied to breath and blood tests. The Court explained that "we generally determine whether to exempt a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Id. at 2176 (internal citations omitted). After applying this balancing test, the Court held that a breath test is a permissible search incident to arrest because it does not implicate significant privacy concerns. Id. (citing Skinner v. Ry. Labor Execs.' Ass'n , 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ). The Court explained that breath-test results only capture limited information—the amount of alcohol in the subject's breath; and a breath test is not an experience likely to enhance any embarrassment to the subject. Id. at 2177. However, the Court explained that, unlike breath tests, blood tests require an intrusive piercing of the skin and "places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading." Id. at 2178.
Next, after determining that a warrantless blood test could not be justified as a search incident to arrest, the Court turned to whether a blood test is permissible based on a driver's statutory implied consent to submit to it. The Court noted that its "prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them" Id. at 2185. Nonetheless, "[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads." Id. The Court held that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Id. at 2186.
With Birchfield in mind, we now consider Dortch's Fourth Amendment argument and whether Arkansas's implied-consent laws impose criminal penalties upon persons who refuse to submit to a blood test. The State argues that a refusal-to-submit violation sanctions the commission of this offense with civil penalties and not criminal penalties. Therefore, the State argues that Arkansas's implied-consent statutes do not violate the Fourth Amendment.
We now turn to the statutes at issue, Arkansas Code Annotated section 5–65–202 (Supp. 2015) governs our implied-consent laws. Subsection (a) states:
Arkansas Code Annotated section 5–65–202 was amended in 2017 to add a warrant requirement for blood draws. However, the law that controls is the substantive law in effect on the date the crime was committed. Wood, supra.
A person who operates ... a motor vehicle or is in actual physical control of ... a motor vehicle is deemed to have given consent, subject to § 5–65–203, to one (1) or more chemical tests of his or her blood, breath, saliva, or urine for the purpose of determining the alcohol concentration or controlled substance content of his or her breath or blood if:
....
(2) The person is involved in an accident while operating or in actual physical control of ... a motor vehicle[.]question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
Id. (emphasis added and internal citations omitted).
Civil penalties and evidentiary consequences for refusal do not invalidate consent or cast doubt on the constitutionality of a blood draw performed pursuant to implied consent. These are precisely the consequences imposed by Ark. Code Ann. § 5–65–203(b) and our case law. It is the substance of the consequences for refusal, not its location in the code, which is determinative. To determine whether penalties for refusal are criminal or civil, we need look to the text of the statute and the actual penalties imposed.
Refusal results in suspension or revocation of driving privileges, Ark. Code Ann. § 5–65–205(b), and we have previously affirmed that evidence of an accused's refusal to submit to a chemical test can be properly admitted as circumstantial evidence showing a knowledge or consciousness of guilt, see Metzner v. State , 2015 Ark. 222, at 6, 462 S.W.3d 650, 655. We have previously characterized these consequences as a civil sanction that does not rise to the level of criminal punishment. See Leathers v. Cotton , 332 Ark. 49, 51, 961 S.W.2d 32, 33 (1998) ("Administrative suspension or revocation of driver's licenses, which constitutes a remedial civil sanction, see Pyron v. State , 330 Ark. 88, 953 S.W.2d 874 (1997), is primarily governed by section 5–65–104."). In so holding, we acknowledged that driving, itself, is a privilege, not a right, and the revocation of a privilege temporarily granted is traditionally remedial and civil in nature. See Pyron , 330 Ark. at 90, 953 S.W.2d at 875(citing Helvering v. Mitchell , 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938) ). Because suspension of driving privileges does not deprive an individual of a right, it is not a criminal sanction.
Much of the majority's decision turns on the placement of this civil penalty in the criminal code; however, that is not persuasive. In Pyron , we addressed whether these same penalties located in another section of the criminal code constituted criminal punishment for purposes of double jeopardy. 330 Ark. at 90, 953 S.W.2d at 875. The statutory provision at issue in that case was Ark. Code Ann. § 5–65–104. In nearly identical language, that provision stated that "[t]he Office of Driver Services or its designated official shall suspend or revoke the driving privilege of an arrested person or shall suspend any nonresident driving privilege of an arrested person." Ark. Code Ann. § 5–65–104(a)(2). Cf. Ark. Code Ann. § 5–65–205(b)(1) ("The Office of Driver Services shall suspend or revoke the driving privilege of an arrested person who refuses to submit to a chemical test...."). Like the statute at issue here, Ark. Code Ann. § 5–65–104 uses terms like "offense," "arrest," and "conviction." See generally Ark. Code Ann. § 5–65–104. Despite the terminology and location in the criminal code, we considered the nature of the sanction, namely the suspension of a privilege, and concluded that the statute did not impose criminal punishment. Pyron , 330 Ark. at 93, 953 S.W.2d at 876–77. I see no reason for us to deviate from that conclusion here.
The characterization of these consequences as a civil penalty is perfectly consistent with its statutory definition as a "violation." See Ark. Code Ann. § 5–65–205(a)(2). Refusal to submit to a chemical test is designated as a "strict liability offense and is a violation." Ark. Code Ann. § 5–65–205(a)(2). While designated as such, it also qualifies because "the statute defining the offense provides that no sentence other than a ... civil penalty is authorized upon conviction." Ark. Code Ann. § 5–1–108 (emphasis added). Its civil nature is reinforced by the fact that it is a strict-liability offense with no culpable mens rea requirement.
This conclusion finds support from our sister states that have confronted Birchfield to address comparable statutory schemes imposing civil penalties. The Wisconsin Supreme Court upheld its implied-consent statute where the consequence of refusal was limited to the suspension of a driver's license. See Brar , 898 N.W.2d 499. Colorado reached the same result in People v. Hyde , 393 P.3d 962 (Colo. 2017), as did the Idaho Supreme Court in State v. Charlson , 160 Idaho 610, 377 P.3d 1073 (2016), and the Virginia Court of Appeals, Wolfe v. Commonwealth , 67 Va.App. 97, 793 S.E.2d 811 (2016). Most recently, the Florida Court of Appeals upheld Florida's implied-consent statute which addressed civil penalties materially identical to those here. McGraw v. State , 2018 Fla. App. LEXIS 3943, 2018 WL 1413038 (decided March 21, 2018). These cases make it quite clear that presence of the civil penalty in the criminal code was inconsequential as was a de minimis fine. The courts looked to the nature of the penalty to distinguish civil from criminal consequences. After all, placement of the same penalty in a different part of the code would not change its nature.
In contrast, states which have invalidated their implied consent schemes for warrantless blood draws had statutes clearly imposing criminal consequences. These consequences went beyond suspension of driver's licenses to include substantial fines and incarceration. See, e.g. , State v. McCumber , 295 Neb. 941, 893 N.W.2d 411 (2017) ; State v. Vargas , 404 P.3d 416 (N.M. 2017) ; State v. Storey , 410 P.3d 256 (N.M. App. 2017). The deprivation of liberty and property is criminal in nature unlike the revocation of a driving privilege.
Given our history characterizing the suspension of driving privileges as a civil penalty, Arkansas's implied-consent statute is not constitutionally suspect under Birchfield . Indeed, the Arkansas statute mirrors those approved by Birchfield and many other states that have since confronted the same question before us today. Put simply, by operating a motor vehicle in the State of Arkansas, Mr. Dortch was deemed to have given consent to a chemical test in the event of an accident. The consequence of refusal was clearly civil in nature, and so, there was no unconstitutional coercion to invalidate that consent nor did Mr. Dortch affirmatively withdraw his consent. As such, the trial court properly denied Mr. Dortch's suppression motion, upheld the constitutionality of Arkansas's implied-consent statute, and permitted the introduction of the results of that blood draw at trial.
I would affirm the suppression decision and affirm the verdict in its entirety.
Wood and Womack, JJ., join.