City of Seattle v. Bryan, 34609

• Decision Date: 26 December 1958
• Docket Number: No. 34609,34609
• Citation: 333 P.2d 680,53 Wn.2d 321
• Parties: CITY OF SEATTLE, Respondent, v. Harold S. BRYAN, Appellant.
• Court: Washington Supreme Court

Page 321

53 Wn.2d 321

333 P.2d 680

CITY OF SEATTLE, Respondent, v. Harold S. BRYAN, Appellant.

No. 34609.

Supreme Court of Washington, Department 2.

Dec. 26, 1958.

P. R. McIntosh, Wm. S. Lewis, Seattle, for appellant.

A. C. Van Soelen, Seattle, Thomas J. Owens and C. V. Hoard, Seattle, of counsel, for respondent.

ROSELLINI, Justice.

The defendant was charged with driving while under the influence of or affected by the use of intoxicants and with reckless driving. A jury found him guilty of the first charge but innocent of the second.

All of the assignments of error pertain to the admission of evidence and the giving of an instruction regarding a breath test for alcohol content of the blood, known as the Harger test, to which the defendant had voluntarily submitted when he was taken to the police station on the night of his arrest. It is not contended that the testimony of the arresting officer, who had formed the opinion that the defendant was under the influence of alcohol when he questioned him in his automobile, was insufficient to sustain the conviction. However, since the result of the Harger test was strongly corroborative of the officer's testimony and undoubtedly influenced the jury in its verdict, a new trial is in order if there is any merit in the objections which the defendant raises in this court.

The probative value of chemical tests for alcohol content of the blood has been recognized by the legislature of this state. RCW 46.56.010 provides:

'In any criminal prosecution for a violation of the provisions of this section relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following presumptions: * * *

'If there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.

'The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. * * *'

Seattle had adopted the language of this statute in an ordinance under which the defendant was charged. The constitutionality of these enactments is not questioned on this appeal. Neither does the appellant question that, if properly performed, the Harger test is an accurate method of determining the alcohol content of a person's blood. ¹ These questions are not before the court and we voice no opinion regarding them.

The state produced one expert, Dr. Loomis, a professor of pharmacology at the University of Washington Medical School, who also is in charge of the State Toxicological Laboratory. He asserted that there is a direct relationship between the amount of alcohol in the blood and the degree of intoxication, with attendant impairment of faculties. He testified that the Harger test if properly done is now generally regarded as accurate. His testimony was uncontradicted. Also uncontradicted was his testimony that no special skill or training as a chemist is required to operate the device, and that he could teach an average layman to operate it properly in two days. The chart which accompanies the device is an accurately computed table for converting the reading obtained from the test to the corresponding alcohol content reading. According to his testimony, the chemicals used in the test should be obtained from a chemist or laboratory technician and should be kept free from contamination.

Officer Porter, who administered the test to the defendant, stated that he had received his training in the use of the Harger device at the police academy and from his superiors at the police department and that it was a part of his regular duties to give such tests. He gave an account of the procedure which he followed in administering the test to the defendant and gave the result of the test, a reading of .328, as it was recorded in a journal kept for that purpose. The chemicals used by the department were obtained from a commercial laboratory, he said, and were prepared by a Mr. George Ishii, who made deliveries to the police station every week or oftener. On cross-examination, he stated that he did not know the contents of the chemicals, did not know the formula used in preparing the chart, and did not believe there was a farmula.

The defendant's first assignment of error concerns the testimony of Officer Porter. While he does not question the officer's ability to perform the Harger test, he contends that his testimony as to the result of the test is hearsay, because the officer did not know of his own knowledge whether the chemicals had been properly prepared, and did not know how the chart was formulated. The defendant waived any possible error in admitting the testimony of the officer by failing to raise any objection until after the city had rested.

Aside from this fact, we fail to see wherein the officer's ignorance of the nature of the chemicals which were furnished for his use, and his ignorance of the theory on which the conversion table was calculated, rendered his testimony regarding the procedure which he followed and the result which he...