November 2, 2012 meeting
We had a very successful meeting. There were nine people present but there is always room for a few more.
Technicalities dominated the day's discussions. Today we spent a lot of time discussing Baylark v. Helena Regional Medical Center, et al., 2012 Ark. 405. It is difficult to keep up with the twists and turns of the law dealing with service of process. Service of process is necessary to get a lawsuit started. In Arkansas, the rules for service of process must be strictly complied with. The case creates uncertainties for getting an extension of time to serve a defendant. To move for an extension of time, a party must show "good cause." The fact that the lawyer anticipates a challenge to attempted service of process is not enough for good cause.
Chambers v. State, 2012 Ark. 407 is a very important case in defending charges of DWI. The Arkansas Supreme Court has held that it is not necessary to bring the officer who tested the breathalyzer machine and certified it for accuracy to the trial. The certificate of the officer who calibrated and tested the machine is sufficient. The concurring opinion is particularly troublesome in that the trial judge did not explicitly declare whether he was finding the defendant guilty under subsection (a) or subsection (b) of Arkansas's DWI statute.
Ark. Code Ann. § 5-65-103 (Repl. 2005), reads:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
As you can see, there are two ways you can be convicted. The first section is much easier. The state can prove intoxication in any number of ways, including performing poorly on a field sobriety test, regardless of the results of a breathalyzer, blood test, or urine test.
The concurring opinion found that the trial judge's decision could be upheld under subsection (a). It may become necessary in defending a DWI case that you wish to take up on appeal to get the judge to specifically rule as to which section (or both) of the DWI statute is relying upon.
The devil is in the details. Hashing out the details with other lawyers can be very helpful in understanding the significance of some of these cases.
Again we were fortunate to have some of the lawyers involved in some of the big cases of the last couple of weeks to discuss the cases.
Gerry Schulze is a lawyer in Little Rock, Arkansas and one of the members of the Arkansas Advance Sheets Study Group. He created this webpage and blog. We hope that in the future other members of the group will participate, but for right now, this is it.