State v. Hraha

• Decision Date: 14 January 1972
• Docket Number: No. 54786,54786
• Parties: STATE of Iowa, Appellee, v. George William HRAHA, Appellant.
• Court: Iowa Supreme Court

Page 484

193 N.W.2d 484

STATE of Iowa, Appellee, v. George William HRAHA, Appellant.

No. 54786.

Supreme Court of Iowa.

Jan. 14, 1972.

P. F. Elgin, Indianola, for appellant.

Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., Robert Gottschald, County Atty., for appellee.

MASON, Justice.

George William Hraha was charged by county attorney's information filed December 21, 1970, with the offense of operating a motor vehicle while under the influence of an alcoholic beverage contrary to section 321.281, The Code 1966.

Following his plea of not guilty the matter proceeded to trial by jury. Defendant's motion for mistrial at the close of the State's evidence and renewed with motion for directed verdict at the close of all evidence was overruled and the matter submitted to the jury which returned a verdict convicting defendant of the offense charged.

The court overruled defendant's motion for new trial and sentenced him to pay a fine of $300 and costs of prosecution. The court provided in its judgment that in the event of nonpayment of the fine, defendant was to be confined in the Warren county jail for a period of 60 days.

Defendant appeals from this judgment assigning two errors relied on for reversal. He asserts the court erred in overruling objection: (1) to testimony regarding a breath test administered to him by an Indianola police officer and (2) to certain of the court's instructions as being incorrect statements of the law applicable to the case.

We consider the assignments in reverse order.

I. Defendant questions correctness of instructions 15, 16 and 17 in his second assigned error. The State argues this assignment presents nothing for review in this court since defendant did not properly preserve in the trial court any claimed error as to the instructions.

The record discloses that before argument to the jury began, the court furnished counsel with a preliminary draft of the instructions. Before reading them to the jury, the court submitted to counsel its instructions in their final form and granted time for counsel to make objections and take exceptions before the instructions were read to the jury. At this point defendant objected to the instructions mentioned as being incorrect statements of the law as applicable to the case under consideration. The objection to instruction 16 was more specific as will be pointed out later.

In motion for new trial defendant alleged '7. that the court erred in failing to sustain defendant's objections to instructions 15, 16 and 17,' without stating the grounds upon which he concluded error had been predicated.

The trial court fully complied with rule 196, Rules of Civil Procedure, which is applicable to instructions of juries in trials of criminal prosecutions. Section 780.35, The Code 1966. State v. Schmidt, 259 Iowa 972, 979, 145 N.W.2d 631, 636, certiorari denied 386 U.S. 965, 87 S.Ct. 1046, 18 L.Ed.2d 115. Although the problem considered in the cited case dealt with defendant's failure to specifically object to the court's refusal to give his requested instruction, the opinion points out that rule 196, R.C.P., directs, in part, all objections to instructions must specify the objectionable matter, on what grounds and none other will thereafter be considered. It is also made clear in the Schmidt decision that compliance with rule 196, R.C.P., is made mandatory by section 780.35, The Code 1966, in criminal prosecutions.

The problem of preserving for review error based upon an attack of the court's instructions or failure to instruct is discussed at length in State v. Franklin, 163 N.W.2d 437, 440--442, (Iowa 1968); State v. Brown, 172 N.W.2d 152, 157--160, (Iowa 1969); and State v. Gilmore, 181 N.W.2d 145, (Iowa 1970).

Defendant's assertion the instructions under attack were incorrect statements of law applicable to the facts, fails to qualify as a specific objection required under rule 196, R.C.P., as it does not alert the trial court to any particular claimed error to be corrected. State v. Brandt, 182 N.W.2d 916, 918, (Iowa 1971). In Briney v. Tri-State Mutual Etc. Ins. Co., 254 Iowa 673, 689, 117 N.W.2d 889, 898, this court held an objection to an instruction on the ground it is not a correct statement of the law was not sufficiently definite under the rule where it did not point out wherein it was wrong so that the trial court might correct it.

In objecting to instruction 16 defendant added the contention the instruction attempted to limit the jury in its consideration of matters in evidence but did not request additional or more explicit instruction. Where the instruction is correct as given but not as explicit as a party may desire, he must request an additional instruction before the jury is charged in order to preserve any claimed error as a basis for appeal. State v. Brown, 172 N.W.2d at 157--160, and authorities cited.

Since defendant did not preserve any claimed error at trial or in motion for new trial, his second assignment presents nothing for review in this court.

II. Defendant's other assignment concerns admissibility of testimony of Cleo Aldridge, an Indianola police sergeant, and Lynn Calkins, head chemist of the State Hygienic Laboratory in Des Moines, relating to a breath test taken and analyzed for the equivalent blood-alcohol concentration.

Aldridge testified he stopped defendant's automobile the night of December 15, 1970, after having followed it two and a half blocks. After some investigation at the scene the officer, suspecting defendant of intoxication, placed him under arrest for operating a motor vehicle while under the influence of an alcoholic beverage. Defendant was taken to the Indianola police station where Aldridge orally requested that defendant submit to a breath test. Aldridge personally administered the test.

It was brought out on cross-examination of Aldridge that he did not explain the Implied Consent Law (Uniform Chemical Test for Intoxication Act, chapter 321B, The Code) to defendant as he (Aldridge) had no authority to do so. He further testified his only prior experience with breath test equipment resulted from a one-day training session at the Highway Patrol Headquarters.

At that point defendant, in the absence of the jury, moved to strike Aldridge's testimony regarding the breath analysis test for the reason the officer was not authorized to administer the test under the Implied Consent Law and no written request was given pursuant to this statute. The court overruled defendant's motion stating:

'* * * This is a separate proceeding, a criminal case, and the evidence, the court thinks, should be admitted here of any chemical test which appears * * * to have been taken under reasonable, proper circumstances. * * *.

'If we were dealing with a matter of taking the license for a refusal to take it, that would be another matter and the court would feel, probably, the objection would be good at this point.'

Lynn Calkins was permitted to testify over objection that the breath sample showed an alcoholic concentration of 0.233 percent.

The court's ruling on defendant's objections to testimony of these witnesses was the basis for his motions for mistrial and for directed verdict previously mentioned.

Concerning the legitimacy of the breath test as administered here, defendant charges failure in two respects--Officer Aldridge was not empowered by statute to administer the test and no written request was issued pursuant to the statute.

Defendant contends the admission over his timely objection of evidence bearing on the breath test given by Aldridge was reversible error since it was taken in violation of three sections of chapter 321B. We set out the Code sections involved.

Definitions of the words 'peace officer' as used in this chapter are set forth in section 321B.2:

'* * *

'1. Members of the highway patrol.

'2. Police officers under civil services as provided in chapter 365.

'3. Sheriffs.

'4. Regular deputy sheriffs who have had formal police training.

'5. Any other law enforcement officer who has satisfactorily completed an approved course relating to motor vehicle operators under the influence of alcoholic beverages at the Iowa law enforcement academy or a law enforcement training program approved by the department of public safety.'

When the Regular Session of the Sixtieth General Assembly enacted the Uniform Chemical Test for Intoxication Act, it limited the meaning of peace officer to the first four specifications in section 321B.2, as given above. In 1970 the Second Session, Sixty-third General Assembly, chapter 1155, section 1, perhaps in response to questions arising in litigation, added a fifth specification extending the meaning to those officers completing appropriate training programs. This amendment applies here.

Section 321B.3, The Code, provides in part:

'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 under the influence of an alcoholic beverage, shall be deemed to have given consent to the withdrawal from his body of specimens of his * * * breath, * * * 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. The withdrawal * * * shall be administered at the Written request of a Peace officer * * * and only after the peace officer has placed such person under arrest for the offense of operating a motor vehicle while under the influence of an alcoholic beverage. * * *.' (Emphasis supplied.)

The legislature specified in section. 321B.4 persons authorized to take the various tests:

'Taking sample for test. Only a licensed physician, or a medical technologist or registered nurse designated by a licensed physician as his representative, acting at the written request of a peace officer may withdraw such body substances...