David Newbern, Justice.
The appellant, Erin Marie Calnan, was convicted of first-offense DWI, disorderly conduct, and as a result of her refusal to take a breathalyzer test, violation of the implied consent law. She was sentenced to two days in jail with credit for one day served and fined $250 plus costs for the DWI conviction. For the disorderly conduct conviction Calnan was fined $50 and sentenced to two days in jail to run concurrently with the other sentence, and she was given the same one day credit. For violation of the implied consent law, her driver’s license was suspended for six months.
Ms. Calnan argues the Trial Court erred by (1) violating her right to a jury trial with respect to the DWI conviction, and (2) violating her right to due process by refusing to allow her to obtain an independently administered blood test. We find reversible error on the first point and remand for a new trial. We discuss the second point to assist the Trial Court upon retrial.
On January 10, 1990, at approximately 1:30 a.m., Calnan was stopped by Officer Ron Largent of the Rogers Police Department, who had observed her driving erratically and speeding. Office Largent testified he smelled alcohol on Calnan’s breath and when he asked her to get out of the car she staggered. He administered field sobriety tests to Calnan, and based on her difficulty with each test, Calnan was arrested for DWI.
After Ms. Calnan was informed she was under arrest, she began yelling and cursing Officer Largent. She requested permission to make a phone call. While she was on the phone, Officer Largent informed her that, due to her condition, she would not be released until the next morning. Officer Largent testified that at that point it became necessary to take the phone away from her for fear she would yank it from the wall. He also testified that Calnan kicked and pushed him. He and another officer restrained her.
Officer Largent requested that Calnan take a breathalyzer test, but she refused and demanded to be taken to the hospital for a blood alcohol test. Officer Largent testified that he refused to comply as he was not required to do so in view of her refusal to take the breathalyzer test and that “she was just totally too combative and abusive to be taken to the hospital.” Ms. Calnan was later taken to the Benton County Jail for the remainder of the night.
Ms. Calnan was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the Circuit Court and was found guilty of all charges but speeding in a de novo bench trial. There was no mention by either party or the Court of trial by jury.
1. Jury trial
Ms. Calnan argues that she did not waive her right to a trial by jury, and thus the case should be reversed as her right to trial by jury was violated.
Arkansas Const. art. 2, § 7, provides in relevant part:
The right to trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. . . . [emphasis added].
The manner prescribed by law for a defendant in a criminal trial to waive the right to a jury trial is set out in Ark. R. Crim. P. 31.1, .2, and .3. Rule 31.2 states:
Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
The law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. That did not occur here. In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), we wrote “Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter.”
Our clearest expression that a criminal defendant bears no burden of demanding a trial by jury under our constitution and law came in Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991) . We stated “There was no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue, thus the trial court erred in not honoring Elmore’s right to be tried by a jury.”
No doubt we have a contemporaneous objection rule, which requires objection at the trial level in order to preserve an argument for appeal. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992) . The contemporaneous objection rule applies even with respect to denial of constitutional rights. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). In the case of the right to jury trial, however, the Constitution provides that it may be waived “by the parties in all cases in the manner prescribed by law.”
The Constitution thus expresses the only manner in which the right can be lost, that is, by waiver. “Waiver” is an “intentional relinquishment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). We have followed the familiar doctrine of expressio unius est exclusio alterius since our first volume of reported decisions. It means if the Constitution expresses one exception to a general provision, other exceptions are excluded. We first applied the doctrine in Hall v. State, 1 Ark. 201 (1838). It remains viable and governs in this case. The constitutional right to a jury trial cannot be lost by forfeiture. It can only be waived. It is otherwise to remain “inviolate.”
The State argues that our decision in Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983), holds that a defendant must raise in the trial court the denial of the constitutional right to a jury trial to preserve the argument for appeal. There the defendants did not contend that they did not waive their right to a jury trial in accordance with the law. They argued only that their waiver was omitted from the record. In affirming, we cited the contemporaneous objection rule but noted that the issue being decided was not a constitutional one. While it does appear that we used the contemporaneous objection rule to overcome failure to comply with the “preservation” aspect of Rule 31.2, our opinion consisted of less than one page, and it is apparent that no consideration was given to the Rule and the constitutional requirement that a jury trial remain inviolate unless waived by the parties as provided by law.
There are four exceptions to the contemporaneous objection rule.
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David Newbern, Justice.
The appellant, Erin Marie Calnan, was convicted of first-offense DWI, disorderly conduct, and as a result of her refusal to take a breathalyzer test, violation of the implied consent law. She was sentenced to two days in jail with credit for one day served and fined $250 plus costs for the DWI conviction. For the disorderly conduct conviction Calnan was fined $50 and sentenced to two days in jail to run concurrently with the other sentence, and she was given the same one day credit. For violation of the implied consent law, her driver’s license was suspended for six months.
Ms. Calnan argues the Trial Court erred by (1) violating her right to a jury trial with respect to the DWI conviction, and (2) violating her right to due process by refusing to allow her to obtain an independently administered blood test. We find reversible error on the first point and remand for a new trial. We discuss the second point to assist the Trial Court upon retrial.
On January 10, 1990, at approximately 1:30 a.m., Calnan was stopped by Officer Ron Largent of the Rogers Police Department, who had observed her driving erratically and speeding. Office Largent testified he smelled alcohol on Calnan’s breath and when he asked her to get out of the car she staggered. He administered field sobriety tests to Calnan, and based on her difficulty with each test, Calnan was arrested for DWI.
After Ms. Calnan was informed she was under arrest, she began yelling and cursing Officer Largent. She requested permission to make a phone call. While she was on the phone, Officer Largent informed her that, due to her condition, she would not be released until the next morning. Officer Largent testified that at that point it became necessary to take the phone away from her for fear she would yank it from the wall. He also testified that Calnan kicked and pushed him. He and another officer restrained her.
Officer Largent requested that Calnan take a breathalyzer test, but she refused and demanded to be taken to the hospital for a blood alcohol test. Officer Largent testified that he refused to comply as he was not required to do so in view of her refusal to take the breathalyzer test and that “she was just totally too combative and abusive to be taken to the hospital.” Ms. Calnan was later taken to the Benton County Jail for the remainder of the night.
Ms. Calnan was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the Circuit Court and was found guilty of all charges but speeding in a de novo bench trial. There was no mention by either party or the Court of trial by jury.
1. Jury trial
Ms. Calnan argues that she did not waive her right to a trial by jury, and thus the case should be reversed as her right to trial by jury was violated.
Arkansas Const. art. 2, § 7, provides in relevant part:
The right to trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. . . . [emphasis added].
The manner prescribed by law for a defendant in a criminal trial to waive the right to a jury trial is set out in Ark. R. Crim. P. 31.1, .2, and .3. Rule 31.2 states:
Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
The law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. That did not occur here. In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), we wrote “Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter.”
Our clearest expression that a criminal defendant bears no burden of demanding a trial by jury under our constitution and law came in Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991) . We stated “There was no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue, thus the trial court erred in not honoring Elmore’s right to be tried by a jury.”
No doubt we have a contemporaneous objection rule, which requires objection at the trial level in order to preserve an argument for appeal. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992) . The contemporaneous objection rule applies even with respect to denial of constitutional rights. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). In the case of the right to jury trial, however, the Constitution provides that it may be waived “by the parties in all cases in the manner prescribed by law.”
The Constitution thus expresses the only manner in which the right can be lost, that is, by waiver. “Waiver” is an “intentional relinquishment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). We have followed the familiar doctrine of expressio unius est exclusio alterius since our first volume of reported decisions. It means if the Constitution expresses one exception to a general provision, other exceptions are excluded. We first applied the doctrine in Hall v. State, 1 Ark. 201 (1838). It remains viable and governs in this case. The constitutional right to a jury trial cannot be lost by forfeiture. It can only be waived. It is otherwise to remain “inviolate.”
The State argues that our decision in Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983), holds that a defendant must raise in the trial court the denial of the constitutional right to a jury trial to preserve the argument for appeal. There the defendants did not contend that they did not waive their right to a jury trial in accordance with the law. They argued only that their waiver was omitted from the record. In affirming, we cited the contemporaneous objection rule but noted that the issue being decided was not a constitutional one. While it does appear that we used the contemporaneous objection rule to overcome failure to comply with the “preservation” aspect of Rule 31.2, our opinion consisted of less than one page, and it is apparent that no consideration was given to the Rule and the constitutional requirement that a jury trial remain inviolate unless waived by the parties as provided by law.
There are four exceptions to the contemporaneous objection rule. They occur (1) when, in a death penalty case, a trial court fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) when a trial court errs at á time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) when a trial court should intervene on its own motion to correct a serious error; and (4) when the admission or exclusion of evidence affects a defendant’s substantial rights. Wick v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The third exception applies in this case. There need be no contemporaneous objection to raise an issue on appeal if otherwise a serious error will result.
Our Court of Appeals held in a civil case that the right to a jury trial is so fundamental that if it is denied a serious error results. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980). The principle applies equally, if not more so, to a criminal trial.
In every criminal trial where there is a right to trial by jury, the court should proceed as if a jury were to be used unless waiver takes place in accordance with the law. That was the intent, clearly expressed, of our opinion in Elmore v. State, supra. The burden is on the trial court to assure that, if there is to be a waiver of the right to a jury trial in a criminal case, it be done in accordance with the Rule by which we have implemented our Constitution.
The Arkansas Constitution and Rules of Criminal Procedure assume a defendant will be tried by a jury unless that right is expressly waived. The law providing the manner of waiver is obviously designed to assure that the jury trial right is not forfeited by inaction on the part of a defendant. The contemporaneous objection rule does not apply in this circumstance and the conviction must be reversed.
2. Constitutionality of the statute
The argument here is that Ms. Calnan was deprived of due process of law because she was not allowed to go to a hospital to obtain a blood test. Our law permits a person who has been subjected to a breathalyzer test to obtain an independent second test. Arkansas Code Ann. § 5-65-204(e) (Supp. 1991) provides in relevant part:
(e) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
* * *
(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist this person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
As the breathalyzer test was refused by Calnan, there was no requirement that an independent chemical test be afforded her pursuant to the Statute. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991). The Statute is clear that an independent test should be made available in addition to tests administered at the law enforcement officer’s direction.
In Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988), we held that a defendant’s due process rights were not violated when he was not informed of his right to an independent test for intoxication. We stated that Patrick did not have a right to an independent chemical test because he was not given a test at the direction of the law enforcement officer.
In Grayson v. State, 30 Ark. App. 105, 783 S.W.2d 75 (1990), the Court of Appeals dealt with a similar issue. The Court of Appeals held that pursuant to Ark. Code Ann. § 5-65-204(e)(2) the remedy for a person who is not afforded the opportunity to obtain an additional test is the exclusion of any chemical test taken at the direction of the law enforcement officer. The Court of Appeals wrote, “It naturally follows that appellant, in not having any test results introduced into evidence against him, was not deprived of the right the statute cited [5-65-204(e)] is intended to insure.” See also Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976).
Nor can we accept the contention that the Statute is unconstitutional because it prohibited Ms. Calnan from gathering evidence. We know of no authority, other than the law of mandatory bail, which is not at issue here, requiring that a defendant who has been arrested for an offense be let out of jail to gather evidence.
Reversed and remanded.