State v. Findlay

• Decision Date: 18 October 1966
• Docket Number: No. 52166,52166
• Citation: 259 Iowa 733,145 N.W.2d 650
• Parties: STATE of Iowa, Appellee, v. Robert Burnett FINDLAY, Appellant.
• Court: Iowa Supreme Court

Page 650

145 N.W.2d 650

259 Iowa 733

STATE of Iowa, Appellee, v. Robert Burnett FINDLAY, Appellant.

No. 52166.

Supreme Court of Iowa.

Oct. 18, 1966.

Patrick J. Life, Oskaloosa, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Albert F. Goeldner, County Atty., Sigourney, for appellee.

LARSON, Justice.

On April 27, 1965, defendant was indicted for the crime of operating a motor vehicle while intoxicated, he being a second offender. Section 321.281 of the 1962 Code. Pursuant to the provisions of Chapter 444, Acts of the 61st General Assembly, relative to the procedure to be followed in imposing enhanced punishment as a result of prior convictions, this indictment was dismissed and an information was filed to conform with the new provision. Trial was had on October 25, 1965, and the jury returned a guilty verdict. On November 17, 1965, judgment was entered against him and he was ordered to pay a fine of $300.00 and the costs of prosecution. It was also recommended that no new driver's license be issued to him for a period of sixty days thereafter. When motions for a new trial and in arrest of judgment were overruled, he appealed.

In his brief he poses two questions: (1) Does the taking of a blood sample from an unconscious person violate the due process clause of the fourteenth amendment of the federal constitution or any provisions of the constitution of the State of Iowa? (2) Does the consideration of the results of a blood test taken from an unconscious person not under arrest violate the fourteenth amendment of the constitution of the United States, or any provisions of the constitution of the State of Iowa, where no express consent is given by the defendant? Under the circumstances revealed by this record, our answer must be in the negative.

At approximately 6:13 P.M. on February 6, 1965, as the defendant, alone, was driving an automobile in a northerly direction on Highway 149 about eight miles south of Sigourney, Iowa, he was involved in a collision with another automobile traveling in the opposite direction. All occupants of the automobiles were injured, and defendant was in a semi-conscious condition when he was observed at the scene and when he was taken by ambulance to a Sigourney hospital. He was unconscious when a physician was called to treat him at the hospital. One of the observers who said defendant smelled strongly of liquor was the sheriff, who had been called to the accident scene. This caused him to suspect defendant was intoxicated. Later on his arrival at the hospital the sheriff requested the attending doctor to take a blood sample from defendant. Although the doctor refused because he had already given the defendant preliminary emergency treatment, he did sign a certification to the effect that defendant was not in a conscious condition so as to give a consent to the taking. While defendant had not been arrested, at the direction of the officer a blood sample was taken by a registered nurse then on duty at the hospital. It was placed in a container, delivered to the officer, who then transmitted it by registered mail to an Iowa City laboratory for examination and testing. From the laboratory report it appeared the specimen contained 220 mg. of alcohol per 100 cc. of whole blood, which the examining doctor said indicated intoxication. Defendant's arrest, trial, and conviction followed.

Appellant contends the trial court erred by admitting evidence of a blood test taken while defendant was unconscious because (1) it violated defendant's constitutional right of due process as provided by the fourteenth amendment and the fourth amendment of the Constitution of the United States, and Article I of Section 8 of the Bill of Rights of the Constitution of Iowa, (2) the taking of his blood under the circumstances constituted an invasion of privacy and an unreasonable search and seizure, for there was no actual consent of defendant either as to the taking of his blood or as to the admission of the results of the test in the trial, and (3) there was no necessary arrest of defendant either before or at the time of the taking.

Aside from existing federal authority, it would appear this court is writing on a clean slate as to whether under the circumstances revealed and the statutory law of Iowa it is permissible to introduce in a criminal proceeding evidence relating to a blood specimen taken without warrant from an unconscious person not under arrest. We shall first consider the applicable statutory law of this state.

I. The 60th General Assembly in 1963 enacted what is commonly referred to as the 'Iowa Implied Consent Law' (Ch. 114, § 51, 60th G.A.), now found in Chapter 321B, Code of Iowa, 1966. Section 321B.3 (Ch. 114, § 39, 60th G.A.) provides that any person who operates a motor vehicle upon a public highway, under such circumstances as to give reasonable grounds to believe the person is in an intoxicated condition 'shall be deemed to have given consent to the withdrawal from his body of * * * blood * * * and to a chemical test * * * for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out.' This section further states the test can be administered only upon the written request of a peace officer having reasonable grounds to believe such person was driving while intoxicated, 'and only after the peace officer has placed such person under arrest for the offense of operating a motor vehicle while in an intoxicated condition.' It further provides such person may reject these tests, and under Section 321B.7 his driver's license shall be revoked. A test must be made within two hours after arrest and, upon request, the results of the test shall be made available to the accused.

However, Section 321B.5, Code, 1966 (Ch. 114, § 41, 60th G.A.), the provisions of which were in effect on the 6th of February, 1965, provides: 'Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of consent or refusal shall be deemed not to have withdrawn the consent provided by section 321B.3, and the test may be given; provided that a licensed physician shall certify in advance of such test that such person is dead, unconscious or otherwise in a condition rendering him incapable of consent or refusal. In such case such condition shall obviate the requirements of arrest and advice pursuant to section 321B.6.' (Emphasis supplied.)

Section 321B.10 provides for the use of this evidence in court proceedings, criminal and civil.

The Iowa Implied Consent Law properly and clearly provides a workable rule governing 'searches and seizures', which rule takes into account the 'practical demands of effective criminal investigation and law enforcement.' Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726, 737; State v. Polton, Iowa, 143 N.W.2d 307. In State v. Johnson, 257 Iowa 1052, 135 N.W.2d 518, we considered the Iowa Implied Consent Law, and, although all the questions raised herein were not there presented, held the law constitutional. As we understood counsel in argument, defendant is not challenging the constitutionality of that law. Unless, then, if appears the procedural requirements of that law were not met, and it appears the taking was constitutionally unreasonable, defendant, although unconscious at the time the blood specimen was taken and tested, could not thereafter withdraw his consent to the taking or to the admission of the results of the test when properly preserved and introduced in his trial for driving while under the influence of intoxicating liquor.

There was ample evidence of compliance and the jury so found. Officers investigating the accident had reasonable cause to suspect defendant was intoxicated, obtained a certificate of his unconsciousness, ordered blood withdrawn in a medically-approved manner, and had it analyzed in a proper laboratory.

Appellant directs our attention to the case of State v. Weltha, 228 Iowa 519, 292 N.W. 148. It is not in point here. There the court properly found the circumstances showed an unreasonable invasion of defendant's constitutional rights and held it reversible error to admit the results of a blood test in evidence. In that case there was no consent given to the Use of that test when it appeared blood was taken from the accused in an unlawful manner by an unauthorized person. Important procedural requirements necessary to safeguard the individual's rights were not observed. Blood was taken without direction from a peace officer who had probable cause to believe the suspect drove while intoxicated, and the search was not pursuant to an arrest. Conditions such as now appear in the Iowa Implied Consent Law provisions were not followed. His constitutional rights were violated. Upon those grounds we have no quarrel with that decision and feel it does not conflict with our holding here.

II. Neither the federal nor state constitutions require a finding that any search of the body of an unconscious person not under arrest, and the seizing therefrom of body fluid for alcoholic determination, is an unreasonable invasion of one's privacy. The fourth amendment of the federal constitution and Article I, Section 8, of the Iowa constitution, do not require an arbitrary rejection of all such takings. Circumstances are to be considered, and the test often announced is whether the process of the taking 'shocked the conscience.' It is the cruel, 'brutal' and 'offensive' taking which is repulsive to due process. Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396; Breithaupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448, and authorities cited therein.

The overriding function of the fourth amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. Schmerber v. State of California, 86 S.Ct. 1826. It is to secure one's privacy...