State v. Charlson
| Decision Date | 12 December 1967 |
| Docket Number | No. 52721,52721 |
| Citation | 154 N.W.2d 829,261 Iowa 497 |
| Parties | STATE of Iowa, Appellee, v. Danny Earl CHARLSON, Appellant. |
| Court | Iowa Supreme Court |
John E. Nutty, Ames, for appellant.
Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Charles E. Vanderbur, Story County Atty., Ames, for appellee.
Defendant was convicted upon trial of operating a motor vehicle while intoxicated (OMVI) in violation of section 321.281 Code, 1966. Upon this appeal he assigns error in the denial of his motion to suppress evidence of the result of a test of a sample of his blood, taken at his request and with his consent.
The blood sample was withdrawn in Mary Greeley Hospital in the City of Ames by a registered nurse designated by a licensed physician. The nurse testified she withdrew it at the oral request of defendant and Ames Police Officer Keigley. There was no Written request of the officer that the sample be withdrawn.
Further, the syringe used was not 'new, originally factory wrapped, (or) disposable.' It was, however, 'kept under strictly sanitary and sterile conditions.' The quoted words are found in Code section 321B.4, part of chapter 321B, commonly called the Implied Consent Law.
The nurse testified she was assured the syringe was sterile. The nurse also said the syringes 'we use are glass and are resterilized,' she was not sure of the procedure at central storage 'but most of the time they go through at least two or three solutions before they are sterilized, put into individual paper containers and autoclaved.'
The sample of defendant's blood was sealed, labeled and delivered to an experienced pharmacologist who had tested several hundred such samples for alcoholic content. The test revealed 248 milligrams of alcohol per 100 milliliters of blood or .248 percent. The expert testimony is in substance that alcoholic content in excess of 150 milligrams of such a sample of blood is definite proof of intoxication and the committee on alcoholism of the American Medical Association has recommended that the measure of intoxication be reduced to 100 milligrams.
Defendant's motion to suppress the evidence of alcoholic content of his blood was based on the facts the syringe used was not new, originally factory wrapped or disposable and (2) the blood sample was not withdrawn and the test administered at The written request of a peace officer. It is said that because of these two facts the Implied Consent Law, mainly sections 321B.3 and 321B.4, renders inadmissible on the trial of a charge of OMVI evidence of the result of the blood test.
It is implicit in this argument that strict compliance with the procedural provisions of these sections for withdrawing and testing blood, even of one who requests it or consents thereto, is a condition precedent to the admissibility on trial of the criminal charge of evidence of the test. The argument cannot be accepted.
I. No detailed review of the evidence is necessary. We may observe, however, there is ample evidence of defendant's guilt aside from that relating to the blood test.
Defendant was a junior, age 21, at Iowa State University. About 6:45 p.m. Ames Police Officer Bird came upon him and his automobile near Sixth street. The car had left the traveled way, knocked down a light pole and come to rest, badly damaged and inoperable, on a park road adjacent to the street. Defendant was kneeling beside a rear tire, attempting to change it. The hub cap and some or all of the wheel nuts had been removed but the auto jack was lying two to five feet behind the car. Defendant gave conflicting versions to Officer Bird and Officer Keigley, who also arrived at the scene, of the cause of the accident and the tavern where he had been drinking beer. He finally said he had hurriedly consumed a 62-ounce pitcher of five percent beer at the Sportsmen's Lounge. Both Bird and Keigley observed several familiar indications of defendant's intoxication while completing the accident report.
Officer Keigley took defendant to the Ames police station to be booked for OMVI. Since there were some indications defendant may have been injured in the accident, Keigley and Lang, a third officer, were ordered to take him to Mary Greeley Hospital to be examined by a physician. Prior to the examination he was placed under arrest for OMVI.
At the scene of the accident Officer Keigley asked defendant if he would consent to the taking of a blood test and defendant replied 'Yes.' On the way to the hospital defendant was told he was not compelled to undergo a blood test. At the hospital, or perhaps prior thereto, (the record is not entirely clear) the purpose of taking such a test was explained to him. Before the sample of blood was withdrawn by the nurse, as previously related, defendant again gave his consent to the officer and the doctor who examined him to the withdrawal of a blood sample. And, as before indicated, the nurse testified the sample was withdrawn at defendant's request. This was not disputed.
Mention is later made of some other testimony.
II. Defendant's assigned error calls for an interpretation of our Implied Consent Law, chapter 321B. Code 1966. Defendant's main reliance is upon sections 321B.3 and .4 thereof.
However, it is fundamental that in arriving at the correct interpretation of any particular provisions of the act and the intention of the legislature as expressed therein courts should consider the entire act and, so far as possible, interpret its various provisions in the light of their relation to the whole. Ahrweiler v. Board of Sup'rs, 226 Iowa 229, 231, 283 N.W. 889; Everding v. Board of Education, 247 Iowa 743, 747, 76 N.W.2d 205, 208 and citations; Rath v. Rath Packing Co., 257 Iowa 1277, 1284--1285, 136 N.W.2d 410, 414.
Manilla Community School District, etc. v. Halverson, 251 Iowa 496, 501--502, 101 N.W.2d 705, 708, points out it is not permissible to rest the interpretation of a legislative act upon any one part or to give undue effect thereto.
Severson v. Sueppel, Iowa, 152 N.W.2d 281, 284, involves the interpretation of the Implied Consent Law, particularly the definition in section 321B.2, .4 of 'peace officer' as including 'Regular deputy sheriffs who have had formal police training.' In rejecting a rather narrow construction of this language, the opinion states:
Bowman v. Commonwealth, 201 Va. 656, 112 S.E.2d 887, 891 points out that procedural provisions of a somewhat similar statute are remedial in nature and
See also Iowa Code section 4.2.
III. Going now to the provisions of chapter 321B. properly to be considered on this appeal, section 321B.1 states:
To interpret the provisions of the chapter as limitations on the admissibility of evidence in a prosecution for OMVI, as defendant would have us, would create a new handicap to the law enforcement the chapter was designed to aid. It is clear the evidence relating to the test of defendant's blood taken voluntarily and at his request, would have been admissible at the time the law took effect. We find no provision in it which renders the evidence inadmissible now. It is fair to assume the act would have so provided if the legislature intended such a vital change in procedure. Of course it is not our province to write such a provision into the statute. See Gottschalk v. Sueppel, 258 Iowa 1173, 1183, 140 N.W.2d 866, 872.
The pertinent provisions of sections 321 B.3, .4 and .6 follow:
'321B.3 Implied consent to test. Any person who operates a motor vehicle in this state * * * under such circumstances as to give reasonable grounds to believe the person to have been operating a motor vehicle while in an intoxicated condition, shall be deemed to have given consent to the withdrawal from his body of specimens of his blood * * * and to a chemical test or tests thereof, for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out. The withdrawal of such body substances, and the test or tests thereof, shall be administered at the written request of a peace officer having reasonable grounds to believe the person to have been operating a motor vehicle * * * while in an intoxicated condition, and only after the peace officer has placed such person under arrest for the offense of (OMVI). If such person requests that a specimen of his blood not be withdrawn, then a specimen of his breath, saliva, or urine shall be withdrawn at the written request of such peace officer; provided, however, that if such person refuses to submit to any chemical testing, no test shall be given, and the provisions of section 321B.7 shall apply. * * *
'321B.4 Taking sample for test. Only a licensed physician, or a medical technologist or registered nurse designated by a licensed physician as his...
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