State v. Boner
| Decision Date | 09 April 1971 |
| Docket Number | No. 54304,54304 |
| Parties | STATE of Iowa, Appellee, v. Ronald Dean BONER, Appellant. |
| Court | Iowa Supreme Court |
Porter, Heithoff, Pratt & Reilly, Council Bluffs, for appellant.
Richard C. Turner, Atty. Gen., Max A. Gors, Asst. Atty. Gen., George J. Knoke, County Atty., Lyle A. Rodenburg, Asst. County Atty., Council Bluffs, for appellee.
Defendant was charged by grand jury indictment with the crime of manslaughter. He was tried to a jury and convicted and sentenced, and now brings this appeal asserting the trial court erred in overruling a motion to suppress evidence of a blood test and overruling objections to the admissibility of the evidence of the test at trial. He also complains of the giving of two instructions. We reverse and remand.
On August 7, 1969 defendant had been a member of a wedding party in Council Bluffs and following the ceremony had attended a reception for the bride and groom at a local club. He admittedly consumed one mixed drink containing whiskey and six cans or bottles of beer. Later in the evening he was involved in an automobile accident in Council Bluffs in which two girls, occupants of the car defendant was operating, were killed and in which same accident defendant sustained serious injuries. The defendant was taken to a hospital and a physician was called by the arresting officers to take a sample of blood from the defendant. The physician was not in attendance upon the defendant to administer first aid or other professional services. No request in writing from the arresting officers or anyone else in authority was made to the physician to withdraw the blood sample. Prior to withdrawing the sample, the physician attempted to communicate with the defendant, identified himself, told the defendant that he was there for the purpose of withdrawing a sample of blood and requested permission to withdraw the same. Defendant made no reply to the request and the physician testified upon the trial that in his opinion defendant was not unconscious but that the physician did not believe he was capable of responding or consenting to or refusing to submit to withdrawal of blood. The blood was then withdrawn from the defendant by the physician by the use of a disposable plastic syringe and a fresh needle, the blood was placed in a specimen bottle and the syrings and needle were disposed of. Only one specimen was withdrawn. The specimen was then examined by a pharmacologist, who found it to contain nineteen-hundredths of one percent, or 190 milligrams percent of alcohol.
I. Section 321B.4, Code, 1966, 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.' (Italics supplied). The failure of the peace officer to direct a written request to the physician to withdraw the blood specimen from defendant is urged as a grounds for reversal as rendering evidence of the blood test inadmissible.
Section 321B.5, Code 1966 provides,
The above excerpted portions of the statute are incorporated in the so-called 'implied consent law' of our statute. Defendant contends that a failure of literal compliance with the foregoing statutes renders the evidence of the chemical test inadmissible and that the motion to suppress the evidence of the test should have been sustained and that objections to it made during the course of the trial should likewise have been sustained. We are disposed to agree. That the defendant at the time the blood sample was withdrawn from him was incapable of either refusing or consenting seems to be established without question. That no certificate of the physician who withdrew the blood specimen in advance of the test was provided seems to us to be also satisfactorily shown. No request in writing to the physician to administer the test by the arresting officer or any other peace officer in authority was made.
We are not unmindful of the pronouncements of this court in State v. Charlson, 261 Iowa 497, 154 N.W.2d 829, cited by the State, in which this court held substantial compliance with the procedural provisions of our implied consent law is sufficient. However we note the test involved in the Charlson case was taken at the request of the defendant and with his consent. The request of a defendant or his consent to the taking of a specimen of his blood or other bodily substance, would reasonably obviate the necessity for literal compliance with the provisions of the implied consent law above set out.
The defendant further complains the fact only one sample of the defendant's blood was withdrawn, destroyed one of the rights of the defendant guaranteed him by Section 321B.4, Code, which provides Inter alia, The pharmacologist who analyzed the blood sample testified that there is a possibility of error in making the test and that he destroyed the blood sample in this case, and that it would be impossible to make another test. The defendant in effect contends that since by the action in disposing of the sample, a comparison test is not possible and that he therefore has been deprived of any effective means of cross-examination of the very thing which is the basis of the testimony relative to the chemical test of his blood, and accordingly contends that the testimony should have been suppressed and denied admission.
The defendant does not contend that the sample was disposed of with any intent to suppress the evidence or to deprive him of an opportunity to make a comparison analysis. If the sample had been in existence and a demand was made and the demand then refused, there would appear to be merit to the defendant's position, although we are not disposed to express opinion on this question at this time. A provision of the statute last above set out which afforded the defendant the right to have an independent chemical test or tests administered in addition to that test administered by the physician albeit as we have herein concluded the test was administered without compliance with the statutes afforded the defendant adequate protection in this area. See City of Columbus v. Glascock, 117 Ohio App. 63, 189 N.E.2d 889, 891.
The State contends the certificate required by section 321B.5, Code 1966 does not require the certificate of the doctor to be in writing prior to the withdrawal of bodily substances from any person who is dead, unconscious or otherwise in a condition rendering him incapable of consent or refusal to the test. With this position on the part of the State, we cannot agree. The word 'certify' has a generally accepted meaning; it means to testify in writing; to make known or establish as a fact. Black's Law Dictionary, Revised 4th Ed., p. 287; Smith v. Smith, Ind.App., 110 N.E. 1013, 1014. Or, it means to vouch for a thing in writing. State ex inf. Carnahan ex rel. Webb v. Jones, 266 Mo. 191, 181 S.W. 50, 52; Sawyer v. Lorenzen & Weise, 149 Iowa 87, 92, 127 N.W. 1091, 1093. The term 'to certify * * * means to testify to a thing in writing; and in the absence of statutory provision declaring the particular form of certification any form which affirms the fact In writing is sufficient.' (italics supplied). State ex rel. Scotten v. Brill, 58 Minn. 152, 59 N.W. 989, 990; Kipp v. Dawson, 59 Minn. 82, 60 N.W. 845, 846; State v. Schwin, 65 Wisc. 207, 26 N.W. 568, 570. And see State ex rel. Beckstedt v. Eyrich, 120 Ohio App. 338, 195 N.W.2d 371, 376, where the court said, 'The court has searched through most...
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