City of Sioux Falls v. Kohler, 9944

• Decision Date: 20 November 1962
• Docket Number: No. 9944,9944
• Citation: 118 N.W.2d 14,80 S.D. 34
• Parties: CITY OF SIOUX FALLS, A Municipal Corporation, Plaintiff and Respondent, v. Harold Jerome KOHLER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 14

118 N.W.2d 14

80 S.D. 34

CITY OF SIOUX FALLS, A Municipal Corporation, Plaintiff and Respondent, v. Harold Jerome KOHLER, Defendant and Appellant.

No. 9944.

Supreme Court of South Dakota.

Nov. 20, 1962.

T. R. Johnson, Sioux Falls, for defendant and appellant.

Robert S. Golden, City Atty., John E. Burke, Deputy City Atty., Paul E. Mundt, Asst. City Atty., Sioux Falls, for plaintiff and respondent.

HANSON, Judge.

This is an appeal by defendant from a conviction in the Municipal Court of Sioux Falls for driving a motor vehicle while under the influence of intoxicating liquor contrary to an ordinance of said city.

On February 8, 1961 defendant collided with a parked car on Main Avenue in the City of Sioux Falls. Following the collision defendant was taken to the Police Station where he voluntarily consented to take an Intoximeter test. The test was administered by Police Lt. Merle Renli.

The word Intoximeter is the trade name for a scientific breath testing device perfected by Dr. Forrester in 1941. Like the Drunkometer, Alcometer, and Breathalyzer it operates on the assumption that the concentration of blood alcohol bears a fixed relation to the concentration of alcohol in the deep lung, or alveolar air. See Vol. 6 Am.Jur. Proof of Facts, p. 497, et seq. for description in detail. The Intoximeter operates by trapping a subject's breath in a rubber balloon. The trapped air is then filtered out of the balloon over a chemical train. One tube in the train containing magnesium perchlorate absorbs alcohol and moisture. Another tube, referred to as the ascarite, absorbs carbon dioxide. By quantitatively weighing and analyzing such residue a trained chemist is able to calculate the blood alcohol content of the subject according to a fixed mathematical formula. Our statutory presumptions of intoxication are based upon this chemically determined ratio of blood alcohol. SDC 1960 Supp. 44.0302-1. The Sioux Falls City Chemist, Harry Falconer, analyzed the test given defendant and testified the results indicated a blood alcohol concentration of .28. The propriety and admissibility of such scientific evidence is not questioned and is not in issue here. There is, however, another separate step in the Intoximeter test. It is referred to as the decolorization or color change test. It involves another tube in the chemical train containing potassium permanganate which is purple in color. Alcohol reacts upon this chemical by fading its color. The rate of decolorization furnishes an approximation of alcoholic concentration in the breath. No color change indicates absence of alcohol. This phase of the Intoximater test furnishes law enforcement officers with an on-the-spot means of determining whether or not a person has been drinking intoxicating liquor.

At the trial Lt. Renli identified Exhibit 2 as the Intoximeter used in testing defendant. Such exhibit includes a yellow and green packing carton in which the testing device is enclosed. The outside of the carton is covered with pictorial and printed advertising matter. For example the word 'Intoximater' appears in large letters over a picture of a motorist blowing up a balloon in the presence of a law enforcement officer. A wrecked car is in the background. Underneath the picture are the words 'On-the-spot testing for Alcoholic Influence.' The following printed statement also appears on both the upper and lower portions of such carton:

'Data from tests reported by the Committee on Tests for Intoxication of the National Safety Council show the Intoximeter test results to agree more perfectly with blood analyses than any other breath testing method available.'

A sealing wrapper affixed to the outside of the carton contains data reported by the testing officer, Lt. Renli. It shows defendant's decolorization time was 32 seconds. In addition, Exhibit 2 includes a separate yellow sheet of testing procedure directions. Included is a so-called 'Interpretation of Decolorizing Time.' So far as material here this color change chart shows the following ranges of alcoholic influence reflected by rate of decolorization:

'Zone: up to 25 seconds--very strong alcoholic influence; percentage probably ranging upwards from .20%.

'Zone: 25 to 40 seconds--undoubted alcoholic influence; percentage probably ranging from around .15 to .20%.'

Lt. Renli gave a step-by-step demonstration to the jury of testing procedures used in administering the Intoximeter test to defendant. He used Exhibit 3 for this purpose which was a fresh, or unused, Intoximeter. Exhibits 2 and 3 were admitted into evidence over defendant's objections. In our opinion both exhibits should have been excluded and their admission constitutes reversible error.

Like 'Drunkometer' the trade name 'Intoximeter' itself carries with it a self-serving implication. This was pointed out by the New York Court in People v. Davidson, 5 Misc.2d 699, 152 N.Y.S.2d 762, 765, as follows: 'the very name of the device--'Drunkometer'--might very well be misinterpreted to mean that only those who were 'drunk' or intoxicated were to be tested by it; that the very name somehow lent weight to the result which it produced. * * *' The self-serving implication arising from the name 'Intoximeter' should not be further highlighted in the minds of the jury by an aura of infallibility created by unsupported advertising claims. The most damaging portion of Exhibit 2, however, is the color change chart and testing officer's return showing defendant's decolorization time. According to the chart a color change of 32 seconds shows 'undoubted alcoholic influence' with a 'percentage probably ranging from around .15 to .20%.' There is no supporting proof that such phase of the Intoximeter test is a reliable or scientifically accurate gauge of blood alcohol. It was clearly hearsay as to defendant and self-serving as to the City. Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93; Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381; and State v. Gregoire, 88 R.I. 401, 148 A.2d 751. Assuming that Lt. Renli was qualified to administer the Intoximeter test his meager training certainly did not otherwise qualify him as an expert in the use or results of that highly technical scientific device.

In view of our conclusion on this evidentiary point it is unnecessary to consider other assignments of error urged by defendant as they may not be relevant in a new trial.

Reversed.

RENTTO, P. J., and ROBERTS and SMITH, JJ., concur.

BIEGE...