Marcum v. Com.

• Decision Date: 23 June 1972
• Citation: 483 S.W.2d 122
• Parties: Hance MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 122

483 S.W.2d 122

Hance MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 23, 1972.

James J. Varellas, Lexington, for appellant.

Ed W. Hancock, Atty. Gen., M. Curran Clem, Asst. Atty. Gen., Frankfort, for appellee.

STEINFELD, Chief Justice.

On the 29th day of December, 1970, appellant Hance Marcum was arrested and charged with operating a motor vehicle while under the influence of intoxicating beverages. KRS 189.520(2). Upon trial by jury, he was found guilty and fined $100. On this appeal he contends that the court erred in admitting in evidence the results of a breathalyzer test, that KRS 189.520(4) (c) is unconstitutional, and that the court erred in instructing the jury. We reverse.

Before the trial began Marcum moved for a dismissal '* * * on the basis that the breathalyzer is totally inadmissible in that there is no showing it is any more reliable than a lie detector test or a truth serum which has been held to be inadmissible.' The motion was overruled and the case proceeded to trial.

The arresting officer testified that he was attracted to Marcum's truck when the tires squealed as it started from a traffic light. He followed Marcum for several blocks during which time he observed erratic driving, and when Marcum failed to stop as directed by a stop-sign the officer then turned on the blue light, a spotlight and an electronic siren, which Marcum disregarded. The accused drove on until he reached his residence, some eight or ten blocks from the place where the officer had attempted to stop him. The officer testified that he immediately confronted Marcum who showed symptoms of being intoxicated; specifically, his eyes were watery, he was slobbering, he was unable to stand without leaning on the truck, he dropped his wallet twice while attempting to display his driver's license and was unable to produce the license. The officer stated that he advised Marcum he was under arrest for driving while intoxicated. At the police station Marcum was requested to take a breathalyzer test; he agreed and did so.

The police officer who gave Marcum the test testified as to his qualifications, which showed he was skilled in administering such tests. In great detail he explained how the machine was prepared, how the test was given and the results obtained. Marcum's test indicated that he had, by weight, a 0.15% blood-alcohol concentration. The officer testified that this is over the presumptive level of intoxication (0.10%) in this state. Marcum argues that the testimony with respect to his test did not show that it complied with basic requirements. He cites State v. Baker, 56 Wash.2d 846, 355 P.2d 806 (1960), which held that the proof must show:

'That the machine was properly checked and in proper working order at the time of conducting the test; (2) that the chemicals employed were of the correct kind and compounded in the proper proportions; (3) that the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test; (4) that the test be given by a qualified operator and in the proper manner.'

An examination of the testimony of the officer who administered the test to Marcum convinces us that these requirements were fully met in all respects. Cf. Soard v. Rogers' Adm'r, Ky., 332 S.W.2d 525 (1960). There is no merit in the argument that the results of the test should not have been admitted in evidence. Cf. People v. Jansen, 130 Ill.App.2d 365, 264 N.E.2d 862 (1970).

KRS 189.520 states in pertinent part:

'(2) No person shall operate a motor vehicle anywhere in this state while under the influence of intoxicating beverages or any drug which may impair one's driving ability.

'(4) In any criminal prosecution for a violation of subsections (1) and (2) of this section, wherein the defendant is charged with having operated a vehicle while under the influence of intoxicating beverages, the amount of alcohol in the defendant's blood as determined at the time of making a chemical analysis of his blood, urine, breath or other bodily substance, shall give rise to the following presumptions:

'(a) If there was 0.05 per cent (5/100%) or less by weight of alcohol in such blood, it shall be presumed that the defendant was not under the influence of intoxicating beverages;

'(b) If there was more than 0.05 per cent (5/100%), but less than 0.10 per cent by weight of alcohol in such blood, such fact shall constitute a presumption that the defendant either was or was not under the influence of intoxicating beverages, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant;

'(c) If there was 0.10 per cent (1/10%) or more by weight of alcohol in such blood, it shall be presumed that the defendant was under the influence of intoxicating beverages.

'(5) The provisions of subsection (4) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the defendant was under the influence of intoxicating beverages.'

Marcum contends that KRS 189.520(4)(c) is unconstitutional in that it creates a presumption of guilt which is squarely in conflict with the presumption of innocence granted to all accused of crime. This argument was rejected in Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 243 (1967).

In Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006 (1938), we stated:

'It is now well settled that it is competent for legislative bodies to prescribe by their enactments that a certain state of facts shall constitute a presumption of the principal fact, and to thereby east the burden of overcoming that presumption on the adverse party, even a defendant in a criminal prosecution. See volune 1 of Wharton's Criminal Evidence, 11th Ed. pages 79, 80, sections 69 and 70; 10 R.C.L. 864, section 7; annotations in 51 A.L.R. on page 1179; Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407; McArthur v. Payne, 201 Ky. 793, 258 S.W. 684; Hughes v. Commonwealth, 242 Ky. 412, 46 S.W.2d 783, and numerous cases cited in those opinions and texts, and other cases decided since those we have listed. But it is equally well settled that such enacted presumptions may be given only a prima facie effect and not a conclusive one so as to bar the opposing litigant, or the defendant in a criminal or penal action, from the right to rebut it. It is, therefore, incompetent for legislative bodies to prescribe for a conclusive presumption.'

See also United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965) and annotation in 16 A.L.R.3d 754.

In 1 Wharton's Criminal Evidence, 12th Ed., §§ 90, 91, it is written:

'Section 90. Statutory presumptions.

'The legislature has control over the rules of evidence and may enact laws declaring that upon proof of one fact another fact may be inferred, thus creating a statutory presumption.

'As in the case of nonstatutory presumptions and inferences, the presumed fact cannot be accepted as established until it is proved that the initial fact from which it is presumed or inferred does exist.'

'Section 91. Constitutionality.

'A statute making one fact presumptive or prima facie evidence of another is constitutional if the facts warrant the application of the rule of (1) rational relationship or (2) comparative convenience. Under the first, the statutory presumption is held constitutional if in the experience of mankind there is a natural and rational relationship between the proved fact and the presumed fact so that in the ordinary experience of man the presumed fact would exist if the proved fact existed. Under the second, the statutory presumption is constitutional if (a) the defendant has more convenient access to proof which would overcome the presumed fact than the prosecution would have to prove the presumed fact, and (b) the placing upon the defendant of the burden of overcoming the presumption does not subject him to an unfair burden or hardship.'

Another recognized authority has discussed this subject saying. 'If the presumption does no more than create a permissible inference it can hardly be thought that the judge's direction that the jury may convict is an invasion of the jury's function.' McCormick, Law of Evidence, 1st Ed., § 313, p. 662. Our statute in speaking of a presumption does not authorize the trial judge to express his personal opinion as to the truth of falsity of the evidence. This does not contravene constitutional prohibitions. State v. Childress, 78 Ariz. 1, 274 P.2d 333 (1954); Kay v. United States (4th Cir. 1958), 255 F.2d 476, cert. denied 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958).

Our act requiring submission to blood tests has been discussed in a number of cases such as Banks v. Dept. of Education, Bureau of Rehabilitation, Ky., 462 S.W.2d 428 (1971); and Washburn v. Commonwealth, Ky., 433 S.W.2d 859 (1968). It has had our approval. Craig v. Commonwealth, Ky., 471 S.W.2d 11 (1971). Blood-alcohol tests have withstood attacks in other jurisdictions. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963); Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812 (1952); and People v. Jansen (Ill.App.), 264 N.E.2d 862 (1970). Under our statute there is a '* * * rational connection between the facts proved and the ultimate facts presumed * * *,' therefore, this law appears to be within the limits announced in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Also see Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

The final argument is that the court erred in instructing the jury as to the statutory presumption of intoxication. The ttacked instruction was as follows:

'The jury is instructed that if there was a 0.10%...