State v. Fox
| Decision Date | 29 May 1964 |
| Docket Number | No. 35679,35679 |
| Citation | 177 Neb. 238,128 N.W.2d 576 |
| Parties | STATE of Nebraska, Appellee, v. Tommy FOX, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. By statute it is unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of intoxicating liquor, and punishment is provided for a second offense.
2. By statute certain tests are provided which may be made to determine the alcoholic content present in the body fluid of a person charged with driving a motor vehicle while under the influence of intoxicating liquor.
3. By statute, such tests to be considered valid shall be performed according to methods approved by the Department of Health and by an individual possessing a valid permit issued by such department for such purpose.
4. A statute providing that a presumption of intoxication arises under a determination that the amount of alcohol in the subject's body fluid at the time in question is 0.15 percent or more by weight, as shown by chemical analysis, is in derogation of the common law and subject to strict construction.
John P. Jensen, Kearney, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
The defendant was charged in the county court of Buffalo County with unlawfully operating a motor vehicle while under the influence of alcoholic liquor, second offense, in violation of a statute relating to the operation of motor vehicles. Trial was had to a jury. The jury rendered a verdict of guilty. The defendant was fined $300, and in addition was sentenced to the Buffalo County jail for a period of 30 days. The case was tried to a jury in the district court. The jury found the defendant guilty as charged. The defendant was sentenced to 30 days in the Buffalo County jail, ordered to pay a fine of $300, and his driver's license was suspended for a period of 1 year, the suspension to commence upon the defendant's release from the jail or payment of the fine, whichever was the later. The defendant filed a motion for new trial which was overruled, and defendant appealed to this court.
The record discloses that Vern Scharff, a trooper connected with the Nebraska Safety Patrol, was on duty on May 25, 1963; that his attention was first attracted to the defendant when this witness was following a white 1963 Chevrolet from California which was about 100 yards ahead of him going east. He saw a blue Nash, which was traveling west, coming from the wrong lane of traffic back to the right lane. He testified that the right wheels of the white Chevrolet went off onto the shoulder of the road, and the blue Nash was in the east-bound lane of traffic. He turned around and followed the blue Nash. He stopped the defendant at Twenty-fifth and L Streets, near Fee's O. K. Tire Service in Kearney. After he stopped the defendant he asked him for his driver's license which was produced. The defendant was unsteady on his feet when he got out of his car. He was asked if he could walk toe-to-heel, and he was unable to do so. This witness smelled liquor on the defendant's breath. He arrested the defendant for driving while under the influence of alcohol. The defendant said he had not had anything to drink. He was taken to the police station where the normal tests of finger-to-nose and walking the line were run, both of which he failed to perform. The defendant's speech was a little bit slurred, and his eyes were bloodshot. The implied consent law was explained to him. He was asked for either a blood or urine specimen to be tested for alcoholic content. He consented to a blood test to be taken by a doctor of his own choice, Dr. Smith. He was taken to the clinic where Dr. Smith had his office. The blood specimen was drawn, and it was sealed in the presence of this witness. It was turned over to this witness, and he took it to Axtell and gave it to trooper Westrope at 1:25 p. m. The blood specimen was put in a small glass tube which this witness was told was sterile. A small piece of paper was taped on the tube with scotch tape and contained the name of the defendant, the arresting officer's name, and the time the blood test was taken. This witness further testified that the doctor injected the blood from the needle directly through the cork of the test tube.
On cross-examination this witness testified that Dr. Smith took the test in his presence; that he saw the doctor put an antiseptic on the defendant's right arm; and that he told the doctor to use a non-alcoholic antiseptic because the blood was being used for an alcoholic-content test. The doctor said the antiseptic was a non-alcoholic antiseptic. The doctor wiped the antiseptic on the defendant's arm. This witness asked the doctor if there was an anticoagulant in the tube and the doctor said there was. He was not sure if the doctor gave that answer, but his technician did.
Dr. H. V. Smith testified that on May 25, 1963, the defendant was in his office, having been brought in by a patrolman to obtain a sample of blood for alcoholic-content determination. The doctor withdrew a sample of blood. To do this, the doctor explained, there was a disposable syringe and needle which were sterile. Such a syringe and needle were obtained and a tourniquet was placed on the defendant's right arm. The needle was inserted into a vein, and the blood was withdrawn. The needle was then placed through the cap of the tube that contained some anticoagulant. The doctor said he used no antiseptic. He further testified that the tube was never unsealed; that these tubes were sterile; that the blood was put into it through a sealed rubber cork; that the injection of the needle into the tube would in no way affect the seal of the container; that he withdrew the blood from just one arm; and that he only inserted the needle once.
Merrill Westrope testified that he was a trooper connected with the Nebraska Safety Patrol; that on May 25, 1963, he met trooper Scharff in Axtell about 1:25 p. m., and received a glass tube from him which contained red liquid which he assumed was blood; and that the tube was sealed and a label was on the tube containing the names of the defendant and the arresting officer, the time the specimen was taken, and the county where it was taken. He examined the specimen to see if it would leak, put it in his shirt pocket, and then arranged by radio to meet Dr. Bunoan at 2 p. m., at the doctor's laboratory in the Holdrege Hospital. He gave the specimen to the doctor, and the doctor proceeded to set up his apparatus to run the test.
Dr. P. Bernado Bunoan testified that he was graduated from the Guadalajara University of Mexico and had studied in the United States; that he majored in bacteriology and chemistry; that for the past 25 years he had worked in the field relating to the effects of various chemicals or substances on the body and body fluids; that he moved to Holdrege in December 1959; that he was qualified by the Nebraska Department of Health to conduct chemical tests for blood alcohol content and had obtained a certificate to conduct chemical examinations in Nebraska; that he knew the methods approved by the Nebraska Department of Health for determining the alcoholic content of blood; that the number one method is the distillation method and the number two method is the calorimetric method; that he uses both methods and his laboratory is the only laboratory in the State of Nebraska using both methods; and that he was qualified by the Nebraska Department of Health to use both methods. He further testified that on May 25, 1963, trooper Westrope called him and he met the trooper at the Holdrege Hospital at 2 p. m.; that Westrope delivered a specimen of blood in a test tube which was sealed and had a label fastened on it with scotch tape; and that after he received the specimen, he looked at it to see whether it was coagulated, or if it had jelled. He further testified that if it was coagulated he would have to process it to liquify it; that this blood specimen was not coagulated; and that he used both methods to doublecheck his findings. The doctor's findings were that under the number one test there was a .36 percent alcoholic content, and the number two method determined the same quantity of alcoholic content. Both tests showed a .36 percent of alcohol by volume. The doctor further testified that a .15 percent alcoholic content would be conclusive evidence that a person was under the influence of alcohol.
On cross-examination the doctor was asked if there was an anticoagulant in the blood sample that had the defendant's name on it. He said he presumed there was because the blood was liquified; and that there are only two anticoagulants recognized for blood alcohol determination, number one is sodium fluoride with an oxylate, which test can be done at any time within 1 month, and number two is a combination of sodium citrate and calcium oxylate, which test should be done within 24 hours.
The record shows that a demand was made upon the county attorney for a copy of this doctor's report, but it had never been received. Objection was made to the answers of the doctor to questions for that reason. The objection was overruled.
Dr. Bunoan further testified, on cross-examination, that the wrong type of anticoagulant can contaminate the blood and make the blood alcohol test no good. The doctor was asked the following questions. The doctor went on to say that he recommended to the policemen that he had tubes and would give them some, because that was the kind that was recommended throughout the world for this kind of test. But when they...
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...A pathologist testified that whether the preservative was present or not made no difference in the test results. In State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964), we held that the effect of an improper amount of anticoagulant on the test results goes only to the weight and credibility o......
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