State v. Bedel, 54745
| Decision Date | 15 December 1971 |
| Docket Number | No. 54745,54745 |
| Citation | 193 N.W.2d 121 |
| Parties | The STATE of Iowa, Appellee, v. Lester J. BEDEL, Appellant. |
| Court | Iowa Supreme Court |
Orville A. Hames, Remsen, for appellant.
Richard C. Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., and James L. McDonald, County Atty., Cherokee, for appellee.
Defendant was charged by county attorney's information with the crime of operating a motor vehicle while under the influence of intoxicants in violation of section 321.281, The Code, 1966. He was tried to a jury, found guilty and sentenced, and now appeals. We affirm.
During the late hours of September 16, 1970, defendant was driving and operating a motor vehicle, the property of his son on highway 3. At a point about 2 1/2 miles west of Cherokee, he lost control of his automobile, left the highway and came to rest against a tree, as a consequence of which he sustained injuries and was removed to the hospital at Cherokee. A call was made to a Dr. Fishman of Cherokee, by the admitting nurse, and at that time Dr. Fishman directed the nurse to administer to defendant 75 milligrams of demerol, a sedative, and further to administer to him a shot of tetanus toxoid. Dr. Fishman was not present at the hospital when the drugs were administered, nor did he see defendant until the following morning, September 17. Apparently no doctor-patient relationship existed between Dr. Fishman and the defendant prior to defendant's admittance to the hospital.
Following the call to Dr. Fishman by the nurse, defendant executed a written consent to the withdrawal of a specimen of his blood. A written request for a chemical test of defendant's blood had been made by the arresting officer, defendant at that time being under arrest for having operated a motor vehicle while under the influence of intoxicants. Subsequent to defendant's execution of the written consent to the withdrawal of the specimen, a second call was made to Dr. Fishman who authorized the laboratory technician at the hospital to actually withdraw the blood specimen. The blood was withdrawn and later submitted to chemical analysis by a laboratory regularly performing such services. The microbiologist who performed the test on the specimen testified it contained 150 milligrams of alcohol per 100 cubic centimeters of blood. The defendant asserts two propositions upon which he relies for reversal:
(1) The trial court erred in allowing State's exhibit B, the blood sample of the defendant, into evidence. That the court erred in overruling defendant's motion to suppress concerning exhibit B as to arguing the same and admitting the same into evidence, and allowing the same to be shown in the presence of the jury. That the court erred in not finding a doctor-patient relationship existed at the time Dr. Fishman directed the drawing of the blood sample from the defendant by the Sioux Valley Hospital technician; and
(2) The court erred in submitting instruction 10 to the jury on the grounds that the same is unconstitutional, and places the burden of proof upon the defendant.
We shall deal with the two assignments so urged in inverse order.
I. Instruction 10 reads as follows:
'You are instructed that under the laws of the State of Iowa a person is presumed to be under the influence of an alcoholic beverage if there was at the time more than 100 milligrams of alcohol per 100 cubic centimeters blood in the person's blood.'
The above instruction is nothing more nor less than a recitation of the provisions of the statute, which creates a presumption of intoxication as the quoted instruction clearly advised the jury. Section 321.281, The Code 1966, Chapter 205, Acts of the 63rd General Assembly. We are not disposed to the view that the giving of the instruction, as above set out, in any manner placed the burden of proof upon the defendant.
In any event, the record fails to disclose that the defendant made any objections to the instruction prior to the giving of the instructions to the jury, nor was any request made to the court to elaborate upon the instructions so given or to expand or extend them as is required by rule 196, Rules of Civil Procedure, and the cases interpreting the rule. Because of the failure to preserve the alleged error at trial level, we are unable to reach the substance of the challenge to instruction 10 at this time. State v. Carstens (Iowa 1970), 182 N.W.2d 119, 120--121, and cases there cited.
We note, however, that other jurisdictions in passing upon the constitutionality of similar presumptions have upheld those presumptions. See Anno., 46 A.L.R.2d 1176.
II. Neither are we able to agree with defendant that the trial court erred in allowing State's exhibit B, the blood sample, into evidence. The withdrawing of the sample of defendant's blood and the procedures followed in securing it were insofar as the record discloses in all respects regular. A request in writing had been made of the...
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