State v. DeBerg, 63249
| Decision Date | 20 February 1980 |
| Docket Number | No. 63249,63249 |
| Citation | 288 N.W.2d 348 |
| Parties | STATE of Iowa, Appellee, v. Marlan DeBERG, Appellant. |
| Court | Iowa Supreme Court |
Randy L. Waagmeester of Fisher, DeWaay & Albers, Rock Rapids, for appellant.
Thomas J. Miller, Atty. Gen., Jeanine Freeman, Asst. Atty. Gen., and David W. Casjens, Lyon County Atty., for appellee.
Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN and LARSON, JJ.
This is an appeal by defendant Marlan DeBerg from his conviction of the crime of operating a motor vehicle while under the influence of an alcoholic beverage in violation of section 321.281, The Code 1977. DeBerg contends the trial court erred in admitting into evidence the results of a blood test and other testimony. We agree, reverse the judgment of the trial court and remand for a new trial.
DeBerg was the driver of an automobile which was involved in a single car accident at approximately 1:55 A.M. on June 2, 1977. A deputy sheriff arrived at the scene at 4:20 A.M. and shortly thereafter the defendant and a passenger in the vehicle were taken to a hospital in Rock Rapids. The third occupant of the car died from injuries suffered in the crash. A blood specimen was taken from DeBerg at about 5:30 that morning pursuant to chapter 321B, The Code 1977.
DeBerg was indicted by a grand jury on November 28, 1977, and trial commenced exactly one year thereafter. The State introduced into evidence certification by the attending physician, as required by section 321B.5, that the defendant was unconscious at the time the blood sample was taken. The physician testified that the defendant was not fully unconscious at that time, but described his state as "semi-consciousness". DeBerg responded to repeated questioning regarding his name and indicated the presence of pain when the doctor moved his extremities. The physician testified he found the defendant "incapable of giving consent to the blood test." The certification was admitted over defendant's objection that it did not accurately describe his condition at the time the specimen was withdrawn.
Before trial the defendant sought to suppress the test results because it had been administered over three and one-half hours after the accident while section 321B.3 requires that blood tests be taken within two hours of arrest. The record does not disclose that DeBerg was arrested on the evening of the accident. The motion was overruled, as was defendant's objection on the same ground at trial. Defendant also objected to the evidentiary foundation of the blood test due to the fact that it had not been established that the needles, syringes and other instruments used were new, factory wrapped and disposable as required by section 321B.4. Additionally, DeBerg contended the State had not shown that the vial which contained the blood was sterile. These objections were also overruled.
At trial the court admitted evidence of the car being driven at approximately 80 miles per hour near the time of the accident, the swerving path of the car before it left the road and the distance the car traveled after leaving the road.
DeBerg was found guilty by the jury on November 30, 1978, and sentenced on January 22, 1979, after which he filed a timely notice of appeal to this court.
The following issues are presented for review:
(1) Should the physician's certification, mandated by section 321B.5, that defendant was unconscious at the time the blood test was administered not have been admitted into evidence when the physician testified that the defendant was "semi-conscious" but not capable of giving consent to a blood test at that time?
(2) When section 321B.4 requires that "only new, originally factory wrapped, disposable syringes and needles" may be used for drawing blood, did the trial court err in admitting the test results into evidence when the record indicates that only the sterility of the instruments was shown?
(3) When section 321B.3 requires that a blood test be given within two hours of arrest, should the results of defendant's blood test have been excluded from evidence when three and one-half hours had passed between the time of the accident and the taking of the blood specimen?
(4) Did the trial court err in admitting testimony concerning the speed at which defendant was driving at the time of the accident, the path the car took in leaving the roadway and the fact that a passenger was killed in the accident?
As we find resolution of the second of the aforementioned issues to be dispositive of the question of the admissibility of the blood test results, we will address it first resolution of the first and third issues thus being unnecessary.
I. DeBerg contends the State's foundational showing preliminary to the admission of the blood test results was inadequate, and that the trial court erred in admitting the test results into evidence. We agree.
The trial court concluded that testimony establishing the sterility of the instruments used in drawing blood was sufficient foundation to admit the test results. DeBerg, citing section 321B.4, contends that more must be shown. Section 321B.4 provides: "Only new, originally factory wrapped, disposable syringes and needles, kept under strictly sanitary and sterile conditions shall be used for drawing blood." The record does not disclose whether the syringes and needles used were "new" or "originally factory wrapped", or the manner in which they were stored.
It is clear the State has the burden of showing compliance with the foundational requirements of chapter 321B. State v. Maxwell, 222 N.W.2d 432, 434 (Iowa 1974); Lessenhop v. Norton, 261 Iowa 44, 52-53, 153 N.W.2d 107, 112 (1967). The State concedes that the following facts were not established in the record: (1) the syringes and needles used were new, originally factory wrapped and disposable; (2) the instruments were kept under strictly sanitary and sterile conditions before the withdrawal of defendant's blood; and (3) the vial in which the defendant's blood was stored was free from contamination as required by State v. Binkley, 201 N.W.2d 917, 919 (Iowa 1972), but would have us infer that these conditions were met from the fact that the specimen was taken at a hospital. This we have been unwilling to do in the past a position which we do not now choose to abandon.
We require "literal compliance" with the standards set...
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