State v. Droste, 57381

• Decision Date: 29 August 1975
• Docket Number: No. 57381,57381
• Citation: 232 N.W.2d 483
• Parties: STATE of Iowa, Appellee, v. John Joseph DROSTE, Appellant.
• Court: Iowa Supreme Court

Page 483

232 N.W.2d 483

STATE of Iowa, Appellee, v. John Joseph DROSTE, Appellant.

No. 57381.

Supreme Court of Iowa.

Aug. 29, 1975.

Simon W. Rasche, Jr., Camanche, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., G. Wylie Pillers, III, County Atty., for appellee.

Submitted to MOORE, C.J., and MASON, RAWLINGS, LeGRAND, and McCORMICK, JJ.

MASON, Justice.

Defendant, John Joseph Droste, was charged with operating a motor vehicle while under the influence of an alcoholic beverage contrary to section 321.281, The Code. Trial to a jury resulted in his conviction of the crime charged. He appeals from judgment and sentence imposed upon that conviction.

The factual background leading to this prosecution occurred March 19, 1974. At approximately 8 p.m. on this date defendant was driving in a northerly direction on Third Street in Clinton when at about the 3700 block he swerved over the center line and collided with a semitrailer truck which was driving south.

Roger Wilkie, who had followed the truck several miles, witnessed the accident. Wilkie testified as the car swerved to the west of the center line, the truck began to pull off onto the west shoulder. Unfortunately, this maneuver failed to avoid the ensuing collision of the car with the truck's rear dual wheels. There was evidence the accident occurred on the western one-half of the dry, concrete street.

The Clinton police arrived on the scene approximately five minutes after the collision. Patrolman David Speakman testified the semi was about one-half off the street. He requested the drivers of the involved vehicles identify themselves. As Mr. Droste stepped forward, he stumbled or fell into the officer. At that, Speakman placed defendant under arrest for operating a motor vehicle while under the influence of an alcoholic beverage. Defendant was put into the squad car and taken to the Law Enforcement Center. Speakman stated 20 to 30 minutes elapsed from the time of his arrival at the scene of the mishap until his and defendant's return to the police station.

Defendant was interviewed in the conference room at the Law Enforcement Center. The odor of alcohol, slurred speech, bloodshot eyes and staggering evidenced defendant's intoxication. Defendant furthermore admitted he had been drinking. However, the testimony is uncontradicted defendant easily negotiated three physical tests--the eye-to-nose test, picking up coins, and walking a straight line. These tests were recorded on video tape; in this regard, the officers testified the video tape machine was not operating correctly. Patrolman Speakman and another officer stated there was a marked improvement during and deterioration after these recorded tests of defendant's performance.

Because one Dr. Meyer was not available to administer a blood test, defendant did not consent to one. He did, however, sign the consent form a breath test which was administered. Chemist John J. Wilson testified the amount of alcohol in defendant's breath was the equivalent of a .321 of one percent blood alcohol level. Wilson also stated while people do react differently to certain amounts of alcohol, a person with the aforementioned level would, in any event, be under the influence.

At the close of the State's evidence, defendant interposed a motion for mistrial which dealt with trial court's allowing Wilson's testimony concerning the breath test to go to the jury. The following bases for the motion were argued: (1) no evidence established where the breath specimen came from or (2) whose specimen it actually was; (3) 'that there is nothing to establish that what Officer Speakman sent to John Wilson was, if anything--since neither Officer Speakman nor Mr. Wilson testified to an identifiable exhibit'; (4) there was no evidence Dr. Meyer was not available to administer the blood test; (5) no evidence established the breath bag was ever 'crimped'; (6) no evidence was introduced the breath test machine was warmed up for the 15 minute period (and therefore operational) before the test was administered; (7) 'there is no evidence that any type of control was used to determine whether the specimen, as taken, and that that machine was operational at the time the specimen was taken'; and (8) nothing indicated the container for the breath specimen was in 'an original, factory wrapped carton' or that such container had not been broken by anyone. The motion was overruled.

Defendant's motion for a dismissal then followed. The above reasons were set forth, plus the fact of a 'fatal variance' in the State's evidence of defendant's intoxication; i.e., the officers' testimony of defendant's intoxicated characteristics in opposition to his performance on the dexterity tests. This motion too was overruled. Both were renewed and overruled at the close of all evidence.

Finally, both defendant's and the State's closing arguments are reported. One of the errors presented on appeal arose as follows during defendant's argument:

'* * * Henry J. Fries testified under oath that is man's hand was shaking to badly he could not do what--

'MR. WOODIN: I object to that. The argument is going--

'THE COURT: Your argument is a misstatement of the record. He did not state his hand was shaking.

'MR. RASCHE: (Continuing) His arm was moving or he was--

'THE COURT: The record is that he testified his balance, concerning his balance, Mr. Rasche.

'MR. RASCHE: (Continuing) And the testimony further developed then that he wasn't able to put his fingers on the little card. You mean to tell me, ladies and gentlemen of the Jury--

'MR. WOODIN: Objection. That was not the testimony. Not that he could not put his fingers that he was moving his fingers.

'THE COURT: The testimony that he was, because of his balance, that his fingers were not steady, that they had to be extremely steady. Go ahead.'

Defendant assigns the following errors as a basis for reversal: (1) the trial court erred by asking Patrolman Speakman whether the breath test was administered within two hours of defendant's arrest; (2) the trial court became an advocate for the State and thereby committed prejudicial error when it advised the prosecutor in chambers how to establish foundation and chain of possession incident to the admission of chemist Wilson's testimony on the breath test; (3) in regard to the second error presented, the trial court abused its discretion by allowing the State to recall Patrolman Speakman to establish proper foundation; (4) the trial court's refusal to allow the defense to cross-examine Wilkie concerning his whereabouts before witnessing the accident and whether he had been drinking constituted an abuse of discretion and a denial of the right to effective cross-examination; (5) the State failed to establish the police officer employed devices or methods approved by the Commissioner of Public Safety in administering the breath test; (6) prejudicial error was effected by the trial court's allowing the prosecutor to read aloud the statute dealing with the presumption of intoxication; and (7) the trial court erred by restricting defendant's closing argument dealing with the statements of Officer Fries.

These contentions will be considered other than in the order argued.

I. During the direct examination of the chemist, Wilson, defendant objected to questions propounded to this witness by the State in regard to analysis of the breath sample. We set out the objection as then urged:

'Objection on the grounds it calls for a conclusion and opinion for this witness, for which there has been no proper foundation laid. Secondly, it is objected to on the ground that there is no chain of possession. Thirdly, there is nothing to establish in this record or identify any specific man whatsoever.'

The eight grounds urged by defendant for a mistrial by reason of the trial court's allowance of Wilson's testimony concerning the breath test have been set out earlier.

In written brief and argument defendant now insists in his fifth assignment that the State failed to establish that Speakman was using devices or methods approved by the Commissioner of Public Safety in administering the breath test.

When the admission or exclusion of evidence is challenged in the trial court our adversary system imposes the burden upon counsel to make a proper record to preserve error. It is elementary that unless reasons for the objection are obvious an objection to offered evidence must be sufficiently specific to advise the trial court why it is inadmissible and enable opposing counsel to take proper corrective measures to remedy the defect if possible. The court to which the evidence is offered is entitled to know on what grounds it is challenged and should not be left to speculate as to whether the evidence is in fact subject to some infirmity which the objection does not point out. A specific objection, if overruled, cannot avail the objector except as to the ground specified since the court is not bound to look beyond the ground of the objection thus stated. Every ground of exception which is not particularly specified is to be considered as abandoned. State v. Bruno, 204 N.W.2d 879, 886 (Iowa 1973); State v. Williams, 207 N.W.2d 98, 109--110 (Iowa 1973); Porter v. Iowa Power and Light Company, 217 N.W.2d 221, 231 (Iowa 1974); Vine Street Corporation v. City of Council Bluffs, 220 N.W.2d 860, 862 (Iowa 1974).

Where objector relies on immateriality or irrelevancy, see State v. Clay, 213 N.W.2d 473, 476--477 (Iowa 1973).

Defendant's contention urged in his fifth assignment in this court is based on the foundation requirements for the admission of breath test results referred to in State v. Hansen, 203 N.W.2d 216, 223 (Iowa 1972) and State v. Berch, 222 N.W.2d 741, 744 (Iowa 1974), where this court said the results of the breathalyzer test should be admitted only on a showing (1) of the devices and methods approved by the Commissioner of Public Safety for the...