Janson v. Fulton

• Citation: 162 N.W.2d 438
• Decision Date: 12 November 1968
• Docket Number: No. 53145,53145
• Parties: Wayne Bernard JANSON, Appellee, v. Jack M. FULTON, Commissioner of the Iowa Department of Public Safety, Appellant.
• Court: United States State Supreme Court of Iowa

Page 438

162 N.W.2d 438

Wayne Bernard JANSON, Appellee, v. Jack M. FULTON, Commissioner of the Iowa Department of Public Safety, Appellant.

No. 53145.

Supreme Court of Iowa.

Nov. 12, 1968.

Richard C. Turner, Atty. Gen., and Joseph W. Zeller, Asst. Atty. Gen., for appellant.

B. V. Willie, Eagle Grove, for appellee.

MASON, Justice.

This is an appeal by the commissioner of the Iowa Department of Public Safety from a district court judgment vacating the commissioner's order revoking Wayne Bernard Janson's driver's license under the authority of section 321B.7, Code, 1966. The commissioner's revocation, based upon a sworn report of highway patrolman LeMoine, had been sustained at a hearing requested by Janson under the provisions of Code section 321B.8.

Janson then appealed to the district court under the provisions of section 321B.9. The district court review of this administrative adjudication is de novo with Janson having the burden of proof. Buda v. Fulton, Iowa, 157 N.W.2d 336, 338-339. The parties agreed the appeal to the district court should be heard and decided on the certified transcript of testimony taken before the commissioner's agent and all other proceedings on which the commissioner had made his determination. Of course, this would not shift the burden of proof.

I. While driving his motor vehicle February 10, 1968, in Wright County, Janson had been stopped at 11 p.m. by patrolman LeMoine. There were ample circumstances to give the patrolman reasonable grounds to believe Janson had been operating his motor vehicle while in an intoxicated condition. Section 321B.3. The patrolman placed Janson under arrest for operating a motor vehicle while in an intoxicated condition. Asked if he would consent to a blood test, Janson refused and was taken to the Clarion police station. There Janson again refused to submit to a blood test and when the patrolman asked him orally and in writing to submit to a urine test he consented on being presented with written request, identified as state's exhibit 1, Request for Chemical Test. Although Janson refused to sign the exhibit in that portion referring to the blood test, at 11:10 p. m. he did sign it in the space provided for consent to a urine test.

Janson was then given an empty bottle and conducted to a back room at the city hall where the officer, watching through an open door, saw him urinate. Janson turned to the patrolman, handed him an empty bottle and 'said he couldn't go', although there was evidence from the appearance of his hands and shoes he could and did urinate.

The patrolman then advised Janson of the results of his refusal to furnish a specimen, crossed off the box of the written request indicating 'consent' and marked the one indicating 'refused'.

It is undisputed there was no licensed physician, medical technologist or registered nurse present when Janson was asked to furnish the urine specimen.

II. Code section 321B.4 of our Implied Consent Law provides in part:

'Only a licensed physician, or a medical technologist or registered nurse designated by a licensed physician as his representative, acting at the written request of a peace officer may withdraw such body substances for the purpose of determining the alcoholic content of the person's blood. * * *'

In support of the trial court's ruling Janson contends the patrolman failed to comply with this provision by failing to procure the services of a licensed physician, medical technologist or registered nurse and didn't prepare a written request to be presented to a person authorized by this section to withdraw body substances but proceeded to administer the test himself.

Janson further contends that on cross-examination the patrolman could not state the bottle resembling a pint milk bottle offered by him as a container was uncontaminated or even that it had not been previously used for an alcoholic beverage. Janson now argues he fully cooperated up to the point where directed by a person not authorized by statute to administer the test to urinate in a bottle that appeared contaminated; that after he had signed the consent for a urine test it became incumbent upon the officer to comply with section 321B.4 by presenting a written request to a licensed physician, medical technologist or registered nurse to administer the test.

Janson maintains his refusal was to submit to an improper test and a request for chemical testing in accordance with the statute was never made.

He had made no complaint of the condition of the bottle or the absence of a trained person while the attempt to procure the specimen was in progress.

The court in rendering its finding, conclusions and judgment stated as a conclusion of law, 'The only point plaintiff raises is that no physician, medical technologist, or registered nurse was present during the actual urinating process.'

On this appeal from the administrative hearing we are not concerned with the admissibility in court of results of the chemical analysis of this specimen for the purpose of determining the alcoholic content thereof. This is not a criminal prosecution for operating a motor vehicle while intoxicated nor a civil case such as Lessenhop v. Norton, Iowa, 153 N.W.2d 107, but an administrative proceeding under our Implied Consent Law, chapter 321B. Severson v. Sueppel, 260 Iowa ---, ---, 152 N.W.2d 281, 285.

Nor is the question of a proper foundation for admissibility of opinion testimony in a criminal or civil case based upon analysis of the specimen involved. In Lessenhop v. Norton, supra, Iowa, 153 N.W.2d at 112, we said chapter 321B relates to authority to take blood, breath, saliva or urine specimens for chemical tests when a person is suspected of driving while intoxicated, and provides no rules for admission of these tests into evidence in such cases.

For procedure in laying a proper foundation for results of a Blood test analysis in a civil or criminal case see Lessenhop v. Norton, supra, Iowa, 153 N.W.2d at 111; and State v. Charlson, Iowa, 154 N.W.2d 829, 835. See also Jacobsen v. International Transport, Inc. (8 Cir.), 391 F.2d 49, 51-52, where these opinions are quoted with approval.

Of course, condition of the container which might affect reliability of the chemical analysis of its contents would afford a ground for proper objection to the admissibility of opinion testimony in a civil or criminal case based upon the analysis. As stated, in proceedings under this chapter, alcoholic content of the individual's urine is not material. The fact that acquittal of the criminal charge of operating a motor vehicle while intoxicated might result from the prosecution's failure to lay a proper foundation for admissibility of testimony regarding the alcoholic content of the specimen would not preclude the commissioner from revoking the individual's driver's license because of refusal to submit to chemical testing. Severson v. Sueppel, supra, 260 Iowa at ---, 152 N.W.2d at 285.

Janson's argument that his refusal to submit to chemical testing was due to the container offered him lacks merit.

III. Commissioner asserts the court erred in failing to find (1) plaintiff refused both a blood test and a urine test; (2) refusal of a chemical test by words or acts made it unnecessary to have present one of the trained persons enumerated in Code section 321B.4; and (3) attendance of such a trained person is not required to receive a urine specimen.

The first two contentions were rejected by the trial court in reaching his conclusion that the legislature intended to include urine in the expression 'body substances' and required that a trained person be present when such specimen is obtained.

Section 321B.3 provides:

'Implied consent to test. Any person who operates a motor vehicle in this state upon a public highway, under such circumstances as to give reasonable grounds to believe the person to have been operating a motor vehicle while in an intoxicated condition, shall be deemed to have given consent to the withdrawal from his body of specimens of his blood, breath, saliva, or urine, and to a chemical test or tests thereof, for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out. The withdrawal of such body substances, and the test or tests thereof, shall be administered at the written request of a peace officer having reasonable grounds to believe the person to have been operating a motor vehicle upon a public highway of this state while in an intoxicated condition, and only after the peace officer has placed such person under arrest for the offense of operating a motor vehicle while in an intoxicated condition. If such person requests that a specimen of his blood not be withdrawn, then a specimen of his breath, saliva, or urine shall be withdrawn at the written request of such peace officer; provided, however, that if such person refuses to submit to any chemical testing, no test shall be given, and the provisions of section 321B.7 shall apply. * * *'

Section 321B.7 provides that if a motorist under arrest refuses to submit to the chemical testing, no test shall be given but the commissioner of public safety shall revoke his operator's license.

Both commissioner's third assignment of error and plaintiff's remaining contention present the question whether the legislature intended that presence of a physician, medical technologist or registered nurse be required when a specimen of urine is obtained by the natural urinating process. We therefore consider this assignment before his first two asserted contentions.

In Severson v. Sueppel, supra, 260 Iowa at ---, 152 N.W.2d at 284, we said:

'In interpreting a statute we look to the object to be accomplished, the evils sought to be remedied, or the purpose to be subserved and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it. (Citations) It is obvious the purpose of the...