The Arkansas Court of Appeals issued its first decisions after the summer break on Wednesday, August 27, 2014. There were 10 decisions.

Where the decisions significant? Well they certainly were to the parties. Some of the members of our group have discussed what constitutes a significant case. Before 2007, the court could designate a case for publication or, not for publication. If the case was designated is not for publication it could not be used as legal authority. There was a certain amount of opposition to this practice. For that reason the Arkansas appellate courts system no longer issues unpublished decisions. All decisions are published on its website and given a unique identifier so that they may be referred to and cited for any legal propositions found in the case.

That does not mean that every single case will be significant. There will be cases that simply repeat or apply the findings and conclusions of previous cases. Nevertheless, as lawyers we like to keep up with what the courts are doing so that we can follow trends and try to anticipate what will be happening next.

Two of our members, Robert Tschiemer and Gerry Schulze, recently spoke at a continuing legal education program for the Arkansas Bar Association. Our task was to select the most significant cases of the last year and talk about how they would impact the law and the legal system. We feel like the presentation was a success.

As the courts return to publishing decisions, we recommend that lawyers keep up to date with the changes in the law. We believe that our weekly sessions are beneficial to lawyers trying to keep up with the times. As always we are looking for additional legal professionals with different points of view to join our group and meet with us.

The Chief Justice of the Arkansas Supreme Court has been named chair of the Board of Directors of the National Center for State Courts and president of the Conference of Chief Justices.  This is a huge honor for the State of Arkansas.  

For more please see this News Release.

We congratulate Chief Justice Hannah on this appointment, and we are confident that he will make us all proud.

There weren't many cases today, but there was a lot of discussion of the few that were there.  We had ten participants, which is pretty good for December.  Participation seems to drop off in December, but apparently not this year, at least not yet.

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.

We had a good meeting this week.  David Hodges presented the cases.  We had some lively discussion about some of the cases.  That is what this group is about.  Different lawyers with different areas of expertise and different experiences can give our own points of view on important decisions and the implications those cases may have.  We discussed how criminal defense lawyers can improve their practices in response to decisions such as Gordon v. State, 2012 Ark. 398.  It is essential to make the best objection that you can, even when the objection has to be on the fly because of unanticipated evidence.  In that case the prosecution was allowed to introduce evidence that the defendant was an aggressor in a fight that broke out while he was in jail awaiting trial.  This evidence is highly prejudicial, but the trial court found it was admissible to contradict the defendant's testimony.  The court also sustained a Daubert style objection to testimony of defendant's expert witness.  Unfortunately, the proposed testimony wasn't proffered, so the Supreme Court couldn't consider the issue.

There were no decisions this week due to the Judicial Conference.  I don't know what that will do the schedule.  We'll just have to talk about it sometime next week.