State v. Bailey, 41319
| Decision Date | 16 May 1959 |
| Docket Number | No. 41319,41319 |
| Citation | 184 Kan. 704,339 P.2d 45 |
| Parties | STATE of Kansas, Appellee, v. Frank BAILEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action charging a defendant with unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, a sample of blood voluntarily given by the defendant is analyzed by the Kansas State Board of Health to determine its alcoholic content, and it is held: The result of such test was properly admitted into evidence pursuant to G.S.1957 Supp. 8-1005, and gives rise to a presumption that the defendant was under the influence of intoxicating liquor where 0.15% or more by weight of alcohol in the defendant's blood is shown to exist.
2. A doctor of chemistry under whose supervision a chemical analysis for blood alcohol content is conducted is a proper witness to testify concerning the results of such blood test and to be examined concerning the method used in making such analysis.
3. The statutory presumption that a defendant was under the influence of intoxicating liquor, as illustrated in Syllabus p1, is not conclusive, but is a presumption which may be rebutted by other evidence which a jury is entitled to take into consideration to determine whether the prosecution has sustained its burden of proving beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor. (G.S.1957 Supp. 8-1006.)
4. The statutory presumption in the foregoing syllabus does not change the presumption of innocence with which a criminal defendant is clothed to a presumption of guilt. Such statutory presumption applies to only one of the elements of the offense. Before a defendant can be found guilty of the offense of unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, the prosecution is required to prove each of the several elements of such offense beyond a reasonable doubt.
5. A quantitative chemical analysis made for reducing substances in the blood gives a reasonably accurate laboratory conclusion indicating the quantity of alcohol in the blood, where it is established by testimony that reducing compounds, other than ethyl alcohol, if present at all would have no appreciable effect upon the results of the test.
Jack E. Dalton, of Jetmore, argued the cause and was on the brief, for appellant.
Paul B. Watson, Special Asst. County Atty., and Walter F. Stueckemann, County Atty., Jetmore, argued the cause, and John Anderson, Jr., Atty. Gen., was with them on the brief, for appellee.
This is a criminal action in which the defendant was tried and convicted of unlawfully operating a motor vehicle upon a public highway while under the influence of intoxicating liquor.
The underlying question presented concerns the admissibility of a blood alcohol test made by the Kansas State Board of Health upon a sample of blood voluntarily given by the defendant.
At approximately 1:30 a.m., on the morning of September 15, 1957, two cars collided head-on in the north lane of U. S. Highway 156 in Jetmore, Kansas. A short time later, a car driven by the defendant, Frank Bailey, (appellant) in a westerly direction collided with the rear end of the car which was proceeding west and involved in the first collision. No one was injured in either of the accidents.
The sheriff of Hodgeman County upon investigating the accident requested the defendant to undergo a blood alcohol test which necessitated the drawing of a sample of blood from his arm. The defendant consented to such a test and was taken to the Jetmore Hospital by the sheriff where a sample of the defendant's blood was drawn by a local medical doctor, placed in a test tube which in turn was placed in a cardboard carton and thereafter mailed by the State Highway Patrolman to the laboratory of the State Board of Health for blood analysis.
The report of the analysis was made September 18, 1957, and the slip prepared by the Kansas State Board of Health indicated the results of the analysis revealed blood alcohol of 0.215% by weight. The slip was signed by B. L. Glendening, Ph. D.
The defendant waived arraignment, pleaded not guilty and was tried to a jury which returned a verdict of guilty on the 13th day of May, 1958.
To facilitate answering the questions raised by the appellant some material evidence not directly attacked will be reviewed.
Darrell Wayne Bloodworth, owner of the vehicle which was struck by the defendant, was called as a witness for the State. His testimony disclosed that the defendant approached in his vehicle 'from the East going West pretty fast'. He described how the defendant looked as follows: 'His appearance to me was that he had been drinking.'
C. C. Jones, sheriff of Hodgeman County, testified that he saw the defendant at the scene of the accident and had a conversation with him. He observed the actions of the defendant and how he then looked, and testified: 'He was very unsteady on his feet and his speech was thick and showed the effect of alcohol.' He further related he could smell intoxicants on the defendant and stated: 'My opinion is that he was under the influence of intoxicating liquor.'
Don Minerd, a Kansas State Highway Patrol Officer, called as a witness for the State, responded to a call concerning the accident at Jetmore just west of the intersection of U. S. Highways 283 and 156. He related the defendant produced his driver's license but did not give a clear account of the accident. He asked the defendant what he had been drinking, to which the defendant replied: 'Been drinking beer.' Concerning the defendant's behavior he testified: The witness stated in his opinion the defendant was under the influence of intoxicating liquor. On cross examination he testified:
The record does not disclose that objection was made to any of the foregoing testimony.
The testimony of Dr. Glendening, the principal chemist for the laboratory division of the Kansas State Board of Health, is the subject of the controversy in this lawsuit and will be dealt with fully later in this opinion.
In fairness to the defendant it should be disclosed that three witnesses called on his behalf testified that he was not under the influence of intoxicating liquor. Willis J. Erikson, who operated a service station on U. S. Highway 156, at the point where the accident occurred, testified that the defendant walked and talked in a normal manner and that he did not smell anything on the defendant's breath. Dr. A. M. Shelton, a licensed physician and surgeon, and the local county health officer, who drew the blood for the purposes of analysis from the defendant on the early morning of September 15, 1957, testified:
When asked concerning whether in his opinion the defendant was under the influence of intoxicating liquor, the witness testified:
Mildred Law, a nurse's aide on duty in the hospital who admitted the defendant in the early morning of September 15, 1957, testified that the defendant walked straight, his speech appeared to be normal and that he was in full possession of his mental faculties. In her opinion the defendant was not drunk and she did not smell or detect any signs of liquor on his breath.
The appellant first attacks the admission of the blood test into evidence on what he denominates a violation of the 'best evidence rule'.
Dr. Glendening testified it was one of his duties to examine blood for alcoholic content in the laboratory division of the Kansas State Board of Health. He related that sometimes he made the tests but more often it was done by one of the assistants; that the entire procedure was carried out under his supervision although he may not be present every minute of the time. He testified that Miss Vorse did the analysis in this particular case and that the procedure takes an hour or two.
It is the appellant's contention that it was necessary to establish a complete chain of evidence, tracing the possession of the blood sample to the final conclusion of its testing and that to do so it was necessary for the State to produce Miss Vorse, who made the analysis, as a witness at the trial. Citing State ex rel. Geiger Co. v. Dowling, 117 Kan. 493, 232 P. 615; 21 A.L.R.2d 1220, § 4; and Campbell v. Brown, 85 Kan. 527, 117 P. 1010. It is argued that by permitting Dr. Glendening to introduce the exhibit concerning the blood test and testify therefrom, the defendant was denied a fair opportunity to cross examine in connection with the analysis.
We find no merit in this contention of the appellant. In reality the objection does not go to the chain of possession or to the identity of the blood sample. The analysis was conducted under the supervision and control of Dr. Glendening and as such became his own analysis. He was the proper party to testify concerning the result of the analysis. There is no showing that any part of the testimony of Dr. Glendening was based upon information imparted to him by his assistant, or that the appellant at any time objected to any of his testimony on the ground that it was in violation of the hearsay rule.
The appellant next contends that it was error for the trial court to refuse to...
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