State v. Binkley, 55296
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | Heard before MOORE; REYNOLDSON |
| Citation | 201 N.W.2d 917 |
| Parties | STATE of Iowa, Appellee, v. Melvin John BINKLEY, Appellant. |
| Docket Number | No. 55296,55296 |
| Decision Date | 15 November 1972 |
Page 917
v.
Melvin John BINKLEY, Appellant.
Page 918
Gerald L. Shaffer, Fort Dodge, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Gary Grove, County Atty., Webster City, for appellee.
Heard before MOORE, C.J., and MASON, RAWLINGS, REES and REYNOLDSON, JJ.
REYNOLDSON, Justice.
Defendant, appealing his conviction of operating a motor vehicle while under the influence of an intoxicating beverage, asserts trial court erred in admission of blood test evidence. Specifically, he asserts foundation proof required by § 321B.4, The Code, failed in three essential respects: (1) There was no written request by the patrolman for defendant's blood to be withdrawn; (2) it was not established the nurse who drew the blood was designated by a licensed physician; and (3) there was no evidence the blood sample vial was sterile. For reasons hereafter assigned, we affirm.
I. Written request for withdrawal of blood.
Defendant rightly contends there was no evidence the peace officer (an Iowa Highway Patrolman) ever made a written request to a licensed physician, or medical technologist or registered nurse designated by such physician, for withdrawal of the blood. It is equally clear under § 321B.4, The Code, as interpreted in State v. Wallin, 195 N.W.2d 95 (Iowa 1972) and State v. Boner, 186 N.W.2d 161 (Iowa 1971), proof of such written request was foundationally essential for admission of the test results.
Page 919
However, no objection based on this alleged error was raised until defendant's motion for new trial. Generally, failure to make timely objection or motion to strike showing reason for delayed objection will preclude a party from later claiming error in admission of testimony. State v. Shimon, 182 N.W.2d 113 (Iowa 1970); State v. Halverson, 261 Iowa 530, 155 N.W.2d 177 (1967). An objection, to be timely, must ordinarily be made at the earliest opportunity after ground of objection becomes apparent. State v. Slater, 261 Iowa 554, 153 N.W.2d 702 (1967). We therefore hold in this instance defendant did not preserve the alleged error and cannot assert it here.
II. Designation of nurse to withdraw blood.
Section 321B.4, The Code, relevantly provides:
'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. * * *'
Construing this portion of the statute, we have held where there is proper objection it was reversible error to admit blood test evidence when it was not preliminarily established that the nurse who withdrew the blood had been designated by a licensed physician. State v. Shelton, 176 N.W.2d 159 (Iowa 1970).
During the testimony, defendant's only record objection...
To continue reading
Request your trial
-
State v. Ware, 55441
...Brady v. Maryland, 373 U.S. 83, 86--88, 83 S.Ct. 1194, 1196--1197, 10 L.Ed.2d 215 (1963); Annot. 34 A.L.R.3d 16; cf. State v. Binkley, 201 N.W.2d 917, 919 (Iowa On this subject the record discloses it was the second day of trial, while officer Foster was being cross-examined, that the manne......
-
State v. Canada, 55944
...when the grounds for objection or motion to strike are first apparent. State v. Boose, 202 N.W.2d 368, 369 (Iowa 1972); State v. Binkley, 201 N.W.2d 917, 919 (Iowa 1972). It was not until a police officer, one Henderson, was testifying on the stand that objection to the identification from ......
-
State v. Thongvanh, 84-1736
...to be timely it must ordinarily be made at the earliest opportunity, once the basis of the objection becomes apparent. State v. Binkley, 201 N.W.2d 917, 919 (Iowa We conclude that the basis of defendant's objection was apparent at the time the statement was made. The alleged error was not p......
-
State v. King, 56913
...219 N.W.2d 559, 560; State v. Canada, Iowa, 212 N.W.2d 430, 432; State v. Williams, Iowa, 207 N.W.2d 98, 109; State v. Binkley, Iowa, 201 N.W.2d 917, 919. Application of this rule bars consideration of double jeopardy or collateral estoppel for the first time on this III. It must be noted a......