State v. Hansen, 55248

• Decision Date: 20 December 1972
• Docket Number: No. 55248,55248
• Citation: 203 N.W.2d 216
• Parties: STATE of Iowa, Appellee, v. Daniel Jasper HANSEN, Appellant.
• Court: Iowa Supreme Court

Page 216

203 N.W.2d 216

STATE of Iowa, Appellee, v. Daniel Jasper HANSEN, Appellant.

No. 55248.

Supreme Court of Iowa.

Dec. 20, 1972.

Patterson, Lorentzen, Duffield, Timmons & Irish, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and Robert D. Jacobson, Asst. Atty. Gen., for appellee.

Considered en banc.

LeGRAND, Justice.

Defendant was arrested following some erratic driving on I--35 near the Cumming interchange on January 1, 1971. He was later convicted by a jury of driving a motor vehicle while under the influence of intoxicating liquor in violation of section 321.281, The Code. He appeals from the judgment imposing sentence on that conviction. We reverse and remand for a new trial.

The two assignments of error involve questions which make a recitation of the facts unnecessary. These assignments are:

(1) The court erred in giving Instruction 14 dealing with the statutory presumption arising from the presence of a specified percentage of alcohol in defendant's blood; and (2) The court erred in receiving the results of defendant's breath test made under section 321B.4, The Code, because no proper foundation for its admission was laid.

I. Instruction 14 is here set out:

'A statute of this State provides that if there is evidence that a person operating a motor vehicle upon a public highway, had at the time of said operation, more than ten one-hundredths of one percentum by weight of alcohol in his blood, the same shall be presumptive evidence that such person was then under the influence of an alcoholic beverage.

'The rule established by the foregoing statute permits the jury to infer that the defendant was under the influence of an alcoholic beverage, if it is found by the jury that at the time defendant was driving an automobile on the public highway his blood contained more than ten one-hundredths of one percentum by weight of alcohol.

'However, such inference is not conclusive, but is rebuttable. It may be overcome or rebutted by evidence to the contrary.'

The statute referred to in this instruction is section 321.281, The Code, which provides in part that 'evidence that there was * * * more than ten hundredths of one percentum by weight of alcohol in his blood shall be admitted as presumptive evidence that the defendant was under the influence of an alcoholic beverage.'

Defendant objected to the instruction at trial and again in his motion for new trial, each time without success. He claimed then, and argues now, that the instruction is bad because (1) it deprives him of due process and destroys his presumption of innocence; (2) it shifts to him the burden both of going forward with the evidence and of persuasion by requiring the production of evidence to rebut the presumption arising from the presence of a stated amount of alcohol in his blood; (3) it is irreconcilably in conflict with Instruction 7 dealing with the presumption of innocence and results in a confusing and conflicting charge to the jury; and (4) it compelled him to take the stand in his own defense in violation of his 5th Amendment right to remain silent.

The right of the legislature to create evidentiary presumptions in criminal cases is no longer seriously challenged. Such laws are generally upheld as long as two conditions are satisfied: Such presumptions may not be conclusive of the issue and there must be a rational relationship between the fact sought to be established and the one presumed. Jones on Evidence, page 134, section 3:5, (Sixth Ed. 1972); 3 Underhill's Criminal Evidence, page 1954, section 874, (Fifth Ed. 1957); Annot. 46 A.L.R.2d 1176 (1956); State v. Van Voltenburg, 260 Iowa 200, 206, 147 N.W.2d 869, 871 (1967); State v. Kelly, 218 Minn. 247, 15 N.W.2d 554, 557 (1944); Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519, 1524 (1943).

In State v. Van Voltenburg, supra, we discussed an analogous statute--section 708.7 making possession of burglar tools presumptive evidence of intent to commit burglary--and held that statute to be constitutional. What was said there is equally applicable here, as are the authorities cited in support of that conclusion. We find the portion of section 321.281 dealing with the effect of blood alcohol tests is constitutional; but we must also determine whether the manner in which the presumption arising from the test was presented to the jury is constitutionally proper.

The subject of presumptions and inferences is one which has long been troublesome and confusing. McCormick, The Law of Evidence, page 802, section 342 (Second Ed. 1972); 1 Jones on Evidence, page 125--134, sections 3:1--3:4 (Sixth Ed., 1972). As pointed out by these and other authorities, the terms are sometimes used interchangeably--or 'loosely'--but they are nevertheless fundamentally different. A true presumption is a conclusion which the law makes Mandatory upon proof of the required preliminary facts; and inference is a Permissible finding based on the existence of other facts. Black's Law Dictionary, pages 917 and 1349, (Rev. Fourth Ed. 1968).

Most states have statutes attaching, in one way or another, particular significance to the results of chemical tests which disclose more than the stated amount of alcohol in a defendant's blood.

Some laws provide, where the statutory percentage is exceeded, it 'shall be presumed that the defendant was under the influence of intoxicating liquor.' State v. Childress, 78 Ariz. 1, 274 P.2d 333 (1954); State v. Myers, 26 Ohio St.2d 190, 271 N.E.2d 245 (1971); State v. Protokowicz, 55 N.J.Super. 598, 151 A.2d 396 (1959). Others recite that such a test result is prima facie evidence the defendant was then under the influence of intoxicating liquor. State v. Corsiglia, Mo.App., 435 S.W.2d 430 (1968); State v. Larrabee, 156 Me. 115, 161 A.2d 855 (1960).

Our statute (section 321.281) makes the existence of more than ten hundredths of one percentum by weight of alcohol in the defendant's blood 'presumptive evidence' that he was under the influence of an intoxicating beverage.

We believe this language is analogous to the prima facie approach rather than that which specifically creates a presumption of intoxication. We believe, too, our statute raises an inference (sometimes called a 'presumption of fact') and not a presumption at all, even though we have often referred to it as a presumption.

On this matter we said in Stenberg v. Buckley, 245 Iowa 622, 626, 61 N.W.2d 452, 454 (1953):

'What are commonly known as 'presumptions of fact' are really not presumptions at all, but inferences. '* * * a 'presumption of fact,' in the loose sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, * * *' Wigmore on Evidence, 3rd Ed., Vol. IX, 288, section 2491. Greenleaf on Evidence, 144, § 44, says:

"They are, in truth, but mere arguments, * * *' and '* * * depend upon their own natural force and efficacy in generating belief and conviction in the mind, * * *'.

'These inferences do not affect the duty of either party to produce evidence, except as each party is desirous of showing whatever he can to aid his case. Whether an inference of fact, a 'presumption of fact in the loose sense' as Dean Wigmore describes it, aids a litigant, depends upon whether the common knowledge and experience of men, as applied to facts shown lead to the belief that ordinarily and usually further facts or consequences follow. Such an inference is a reasoning process, an inferring from other facts which appear in evidence. * * * Whether an inference is to be drawn from a given set of facts depends upon whether the state of affairs to be inferred usually and generally follows from the facts shown.'

This was quoted approvingly in part as recently as 1971 in State v. Boner, Iowa, 186 N.W.2d 161, 166. There, incidentally, the objectionable part of Instruction 14 was omitted from the charge to the jury. Cf. State v. Van Voltenburg, supra, 260 Iowa at page 206, 147 N.W.2d at page 871.

With this as a backdrop, we now view Instruction 14 as it relates to the constitutional objections raised. The issue is a narrow one. We find nothing prejudicial in that part of Instruction 14 which sets out the statutory language that the presence of the stipulated percentage of alcohol in defendant's blood is presumptive evidence he was under the influence of an intoxicating beverage. However, we hold the instruction then erroneously converts this into a Conclusive presumption if evidence is not produced to rebut it. The statute was not intended to serve that purpose; nor could it constitutionally do so.

The case comes close to the circumstances in Barrett v. United States, 5 Cir., (1963), 322 F.2d 292, 295, where the court struck down a federal statute making certain evidence concerning the operation of a still sufficient to justify a conviction 'unless the defendant explains (the matter) to the satisfaction of the jury.'

The court said:

'When, however, the legal effect of the rule is to allow an accused person to be found guilty of a crime solely on the basis of the presumption, unless he comes forward with evidence to overcome the nonexistence of the presumed fact, the practical effect is to coerce the accused into taking the stand in spite of the Fifth Amendment provision that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' The presumption gives short shrift to the constitutional privilege. It is all very well to say that the defendant need not take the stand: all he has to do is to come forward with evidence. But should the accused exercise his constitutional privilege of remaining silent, the presumption amounts to a decisive, unanswerable comment on his Fifth Amendment right not to testify. * * * A person accused of a crime has more than the right to present evidence in his defense. He has the constitutional right to sit on his hands. * * *' (Emphasis added.)

We recognize the instruction now...