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Arkansas Supreme Court Reverses Negligent Homicide Conviction Where Evidence Obtained Via Warrantless Blood Draw Used

by Christopher Zoukis

The Supreme Court of Arkansas ruled that an Arkansas statute that allows warrantless blood draws based on implied consent violated the Fourth Amendment when applied to a defendant in a negligent homicide case. The April 26, 2018, opinion reversed the defendant’s conviction and remanded for a new trial, without the improperly obtained blood evidence.

On September 15, 2015, Sammy W. Dortch, Jr. crashed the vehicle in which he and friend Matthew Anderson were riding. Anderson died at the scene. During the crash investigation, Independence County Sheriff’s Deputy Aaron Moody detected signs of intoxication in Dortch, who admitted that he had been drinking. Moody transported Dortch to the emergency room, where he presented him with the Arkansas “implied consent” form pursuant to A.C.A. § 5-65-202.

Dortch signed the form, and a blood draw was performed. Tests revealed that Dortch had a blood alcohol level of .139. He was arrested and charged with negligent homicide, driving while intoxicated, and reckless driving. Prior to trial, Dortch moved to suppress the blood evidence and to declare the implied consent statute unconstitutional. The trial judge denied both motions, and Dortch was convicted. He was sentenced to 15 years in prison.

The Arkansas Supreme Court took up the case, determined that Dortch’s motions should have been granted, and reversed.

The Fourth Amendment prohibits the warrantless search of a person except in certain limited circumstances. In Birchfield v. North Carolina, 136 S. Ct. 2160 (2016), the United States Supreme Court considered the constitutionality of two such circumstances: blood drawn “incident to arrest” for drunk driving and blood drawn pursuant to the “implied consent” of an individual making use of a state’s roadways. The Birchfield Court ruled that while the Fourth Amendment does allow warrantless breath tests incident to arrest, it does not permit warrantless blood draws incident to arrest. The Court further ruled that warrantless blood draws taken pursuant to implied consent laws do not violate the Fourth Amendment unless the law contemplates criminal penalties for refusal.

The Arkansas Supreme Court closely examined the implied consent laws applied to Dortch in order to weigh their compliance with Birchfield. Although the actual implied consent statute, A.C.A. § 5-65-202, does not explicitly contemplate criminal penalties for refusal, other statutes referenced the possibility. A.C.A. § 5-65-402, for example, recognizes the possibility that a criminal case could arise from violation of A.C.A. § 5-65-205(a)(1)(C), which governs failure to submit blood under the implied consent laws. And A.C.A. § 5-65-205(a)(2) states that “refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation.”

Given the fact that in Arkansas anyone convicted of a “violation” may be fined and any conviction involving a fine falls under the criminal code, the Court concluded that the Arkansas implied consent laws, as applied to Dortch, did contemplate criminal penalties for refusal to comply. As such, they violate the strictures of Birchfield, and are unconstitutional as applied to Dortch.

Even though the Court determined that Dortch could not have impliedly consented to the blood draw, it was still possible that he actually, voluntarily consented. In fact, the trial court ruled that Dortch did provide actual consent.

The Arkansas Supreme Court disagreed. Such consent can only be established by clear and convincing evidence provided by the State that the consent was voluntarily given and free from coercion. Here, the State did not meet that, or any burden, because the trial court did not conduct a suppression hearing, consider testimony, or review any evidence on the matter.

Between the constitutional problem and the lack of evidence of actual, voluntary consent, the Court found the proper remedy to be suppression of the evidence.

Accordingly, the Court reversed Dortch’s convictions and remanded the case for a new trial without the evidence gathered from the blood draw. See: Dortch v. State, 544 S.W.3d 518 (Ark. 2018). 

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