State v. Holt

• Citation: 261 Iowa 1089,156 N.W.2d 884
• Decision Date: 05 March 1968
• Docket Number: No. 52734,52734
• Parties: STATE of Iowa, Appellee, v. Harold Wayne HOLT, Appellant.
• Court: United States State Supreme Court of Iowa

Page 884

156 N.W.2d 884

261 Iowa 1089

STATE of Iowa, Appellee, v. Harold Wayne HOLT, Appellant.

No. 52734.

Supreme Court of Iowa.

March 5, 1968.

Life, Davis & Life, by Patrick J. Life, Oskaloosa, and Rowe and Rowe, by John A. Rowe, Fairfield, for appellant.

Richard C. Turner, Atty. Gen., James L. Morrison, County Atty., Wm. A. Claerhout, Asst. Atty. Gen., for appellee.

SNELL, Justice.

Defendant was arrested, indicted, tried, convicted and sentenced for operating a motor vehicle while intoxicated. He has appealed.

Defendant filed a demurrer, application to take depositions of the State's witnesses, motion in limine, motion to suppress, motions for directed verdict, motion for new trial and motion in arrest of judgment. They were respectively overruled.

During the evening of December 14, 1966 defendant was driving his car on the public highway in Henry County. He was observed and followed by a highway patrolman. According to the patrolman defendant's car was weaving all over the road. The officer stopped defendant's car, asked the defendant how much he had had to drink and asked him to get out of his car. The officer testified that defendant was unstable and did poorly walking toe to heel.

Defendant was arrested, advised of his constitutional rights and taken to the Mt. Pleasant police station. Defendant was again advised of his constitutional rights. He was asked to and undertook certain coordination tests. Several witnesses testified that he did poorly. There was testimony that his eyes were bloodshot, his movements uncoordinated, his speech slurred and that he answered questions ambiguously. Several witnesses testified that in their opinion he was intoxicated.

The provisions of the Iowa Implied Consent Law were read to defendant in the police station. Defendant refused to take either the blood test or give a urine specimen and refused to sign the Implied Consent Waiver.

There was testimony by a doctor who had been called to take a blood specimen, if one was to be taken, and a city policeman that they overheard defendant tell the lady who was with him why he would not take a blood test. The doctor testified:

'A. At any rate, he stated he did not take a blood test because he drank enough every day so that he couldn't pass a blood test anyway.

'Q. Was this said in your presence? A. This was said in my presence. I was rather surprised because I wasn't questioning him; I was getting ready to leave.

'Q. Did you observe to whom he was addressing his remarks? A. Yes, it was to this lady who came down to either take him home or provide bail--he was giving her instructions, also, as to whom to contact for bail, and so forth.'

The testimony relative to a blood test was brought out by the State's witness and by defendant's own testimony. Defendant testified in his own behalf. Relative to the blood test he said:

'The officer offered me a blood test. I hate needles and I have been stuck with them on many occasions. When I was in the hospital they gave me hypos. Blood was all they give me. They asked me to take a urine test. I couldn't urinate at that time. * * *

'I did refuse to take either the blood test or urine test at the station. I never was asked if I was intoxicated. Certainly I knew I was suspected of being intoxicated.'

Defendant denied intoxication, denied making the statements claimed to have been overheard, and offered evidence that his uncoordinated walk was due to a previous leg injury. He offered evidence that the weaving motion of his car on the road was due to a detective steering mechanism.

I. The evidence of intoxication was in conflict.

It is not for us to pass on the weight and credit of the testimony nor to say which versions and stories should be believed. These matters were for the jury. There was ample evidence in behalf of the State to present a jury question and ample evidence to support the jury verdict. Further discussion of the evidence is unnecessary.

II. The real issues here relate to admission of testimony as to defendant's refusal to submit to a chemical test for intoxication and the court's instructions relative thereto. Defendant objected throughout the trial and now argues that any mention of his refusal to submit to a chemical test for intoxication violated his rights under the 5th Amendment to the United States Consitution providing that no person 'shall be compelled in any criminal case to be a witness against himself.' Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 holds that the Fourteenth Amendment makes the Fifth Amendment applicable to state court procedures.

Defendant's claims of error were made at every opportunity and are now argued in several divisions but they all relate to the same general proposition.

There is no claim in this case that defendant was not promptly and fully advised of his constitutional rights. He was not subjected to any interrogation. He testified, 'I never was asked if I was intoxicated.' He was asked if he would take certain tests. Some he did and some he refused. The provisions of the Iowa Implied Consent Law were called to his attention. There is no claim that he was uninformed or failed to understand.

For over 100 years it has been the law of Iowa that it is proper to show a defendant's conduct, demeanor, voluntary statements and attitude toward the crime, if there was one. See cases reviewed in State v. Benson, 230 Iowa 1168, 300 N.W. 275.

There have been times in our law when it was permissible for a prosecutor to comment to the jury on a defendant's failure to testify. In earlier periods, and now, such is not the case.

In State v. Benson, supra, defendant was accused of operating a motor vehicle while intoxicated. It was suggested that he go to the hospital and take physical treatment and a blood test. He refused. The question on appeal was whether the admission of evidence relative thereto constituted a denial of a constitutional protection against self incrimination. The evidence was held admissible.

When the Benson case was decided it was permissible for a prosecutor to comment on the defendant's failure to testify. Such is no longer the law. See Griffin v. State of California, infra. However, the comment in Benson, loc. cit., 230 Iowa 1171, 300 N.W. 277, is pertinent:

'Of course, when one is accused of a crime, he does not have to reply to the accusation. But if he declines to reply, his act of silence may be shown to the jury. We are of the opinion that the situation now before us is analogous. The request for a blood test did no more than inferentially accuse the defendant of intoxication. His refusal to submit is similar to a refusal to speak. The jury was told that he did not have to submit. The refusal was merely a circumstance to be considered. The court was right.'

Where constitutional requirements as to warning, etc. have been met as in the case before us there is a difference between showing what defendant did and said when arrested and comment to a trial jury on failure to testify.

In 1963 our legislature in a declaration of public policy enacted what is named therein as the 'Uniform Chemical Test for Intoxication Act.' See Laws of the 60th General Assembly, chapter 114. This law commonly referred to as our 'Implied Consent Law' now appears as chapter 321B of our Code.

While some provisions of this act are made applicable to criminal procedure as pointed out, infra, it is basically an administrative act. No criminal penalties are provided, nothing is prohibited, and no act is required. The state, acting through the legislature, has said in substance, 'If you want to exercise the privilege of operating a motor vehicle on our highways you agree to the administrative and evidentiary procedure we have outlined.'

There is no absolute right to drive on the highway under any and all conditions. It is a privilege, not a right. Spurbeck v. Statton, 252 Iowa 279, 289, 106 N.W.2d 660. It is a privilege enjoyed under the conditions imposed by the legislature. We know of no reason why the state may not impose such reasonable conditions as the legislature prescribes. No one has to accept the conditions imposed and thus make himself subject thereto. No one is required to have a driver's license except as a precedent to driving. It is a condition imposed by the state. We know of no reason why a person in order to enjoy the privilege so granted may not waive such 'rights' as he might otherwise have.

III. Section 321B.1 of our Code provides:

'Declaration of policy. The general assembly hereby determines and declares that the provisions of this chapter are necessary in order to control alcoholic beverages and aid the enforcement of laws prohibiting operation of a motor vehicle while in an intoxicated condition.'

Section 312B.3 provides in part:

'Implied consent to test. Any person who operates a motor vehicle in this state upon a public highway, under such circumstances as to give reasonable grounds to believe the person to have been operating a motor vehicle while in an intoxicated condition, shall be deemed to have given consent to the withdrawal from his body of specimens of his blood, breath, saliva, or urine, and to a chemical test or tests thereof, for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out. * * *'

Other sections provide procedure for taking of a blood sample and administrative procedures. Section 321B.10 makes the results of tests admissible in evidence.

Section 321B.11 provides:

'Proof of refusal admissible. If the person under arrest refuses to submit to the test or tests, proof of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motor vehicle upon a public highway of this state while in an intoxicated condition.'

The issue before us is the constitutionality of this section. The procedure in the trial...