State v. Janssen, 58448

• Decision Date: 17 March 1976
• Docket Number: No. 58448,58448
• Citation: 239 N.W.2d 564
• Parties: STATE of Iowa, Appellee, v. Marvin A. JANSSEN, Appellant.
• Court: Iowa Supreme Court

Page 564

239 N.W.2d 564

STATE of Iowa, Appellee, v. Marvin A. JANSSEN, Appellant.

No. 58448.

Supreme Court of Iowa.

March 17, 1976.

Rehearing Denied April 12, 1976.

Morris C. Hurd and Thomas M. Donahue, Ida Grove, for appellant.

Richard C. Turner, Atty. Gen., William D. Scherle, Asst. Atty. Gen., and James L. McDonald, Cherokee County Atty., for appellee.

Considered en banc.

UHLENHOPP, Justice.

This appeal involves several rulings of the trial court in the trial of defendant Marvin A. Jansen on an indictable misdemeanor charge.

The Cherokee County Attorney charged defendant with operating a motor vehicle while under the influence of an alcoholic beverage on February 19, 1975. Defendant pleaded not guilty. The testimony at trial of observations by witnesses abundantly established defendant's intoxication. In addition, the State showed that a sample of defendant's breath reflected a blood-alcohol equivalent of 130 milligram percent. A jury found defendant guilty and the trial court imposed sentence. Defendant appealed, assigning four errors.

I. Defendant first contends that the trial court erred in overruling his exceptions to Instruction 11 relating to § 321.281 of the Code. This instruction states:

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 or her 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 a public highway his blood contained more than ten one-hundredths of one percentum of alcohol by weight.

However, such inference is not conclusive, but it is rebuttable. It does not shift the burden to Defendant to prove that he was not under the influence of an alcoholic beverage when driving nor does it change the ultimate burden of proof or deprive the Defendant of the presumption of innocence.

In short, the result of the breath test is presumptive evidence and, like all evidence, may be accepted or rejected by you. It is still for you to determine from all the facts and circumstances proven whether the State has carried the burden of proving Defendant guilty of the offense charged beyond a reasonable doubt.

Defendant argues that this instruction comes within the proscription of State v. Hansen, 203 N.W.2d 216 (Iowa); State v. Sloan, 203 N.W.2d 225 (Iowa); State v. Hutton, 207 N.W.2d 581 (Iowa), and State v. Prouty, 219 N.W.2d 675 (Iowa). We think, however, that the trial court carefully and successfully avoided the problem in those cases and brought itself instead under State v. Thornburgh, 220 N.W.2d 579 (Iowa).

A trial judge in a criminal case involving a presumption relating to guilt must avoid two pitfalls. First, the judge must not tell the jury that the presumption is conclusive. State v. Hansen, 203 N.W.2d 216, 220 (Iowa). Second, the judge must not tell the jury that the presumption shifts the burden of proof to the defendant. State v. Hutton, 207 N.W.2d 581, 583 (Iowa).

As to the first of these pitfalls, presumptions in the law are of two types, conclusive and rebuttable. McCormick, Evidence (2d ed.) § 342 at 804. The trial court here clearly negatived any thought that the presumption established by § 321.281 is of the conclusive type and plainly stated that the presumption--or inference, as the court called it--is rebuttable. In the third paragraph of Instruction 11 the trial court stated, 'However, such inference is not conclusive, but it is rebuttable.' The court buttressed this statement in the first sentence of the fourth paragraph: 'In short, the result of the breath test is presumptive evidence and, like all evidence, may be accepted or rejected by you.' Both of these quoted statements were consistent with the first sentence of the second paragraph of the instruction: the rule established by the statute 'permits' the jury 'to infer' that defendant was under the influence. The trial court avoided the first pitfall.

As to the second pitfall which a trial judge must avoid--not to tell the jury that the defendant has the burden of proof--we must consider each of the four paragraphs of the instruction. The first paragraph merely informs the jury of the existence of the statutory presumption. This court has held such language proper. State v. Hansen, 203 N.W.2d 216, 219--220 (Iowa). The second paragraph does not deal with burden of proof; it merely tells the jury the statute permits the jury to infer. The third paragraph tells the jury the inference is not conclusive but is rebuttable, and informs the jury that the inference does not shift the burden to defendant to prove that he was not under the influence nor change the ultimate burden of proof or deprive defendant of the presumption of innocence. The fourth paragraph tells the jurors they may accept or reject the statutory presumptive evidence. It also informs the jurors that they must find from all the proven facts and circumstances whether the State has sustained its burden of proving defendant guilty beyond a reasonable doubt. None of these paragraphs casts the burden of proof on defendant.

Defendant points to the first sentence of the third paragraph:

However, such inference is not conclusive, but it is rebuttable.

This compound sentence contains two parts. The first part does not say that defendant has the burden of proof; it simply and correctly informs the jury that the inference 'is not conclusive.' The jury is entitled to know this.

The second part of the sentence states that the inference 'is rebuttable.' Defendant argues this tells the jury that he has the burden to rebut it, and he cites the line of cases beginning with State v. Hansen, 203 N.W.2d 216 (Iowa).

The instruction in those cases, however, contained a second sentence which this trial court omitted. The paragraph involved in those cases read:

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

This court held the italicized language we have quoted might have caused the jury to think the Defendant had to produce evidence to dispel the inference. This is shown by the following passage from State v. Hansen, 203 N.W.2d 216, 220 (Iowa): 'We recognize the instruction now under attack does not specifically required Defendant to produce rebutting testimony; but it does demand that someone--either defendant or the State--do so When it tells the jury the blood test results 'may be overcome or rebutted by evidence to the contrary. " (Latter italics added.)

This court has found language unobjectionable which is very similar to the second part of the sentence now before us--the inference 'is rebuttable.' The latest case in the Hansen series was decided on June 26, 1974, State v. Prouty, 219 N.W.2d 675 (Iowa). On July 31, 1974, this court decided State v. Thornburgh, 220 N.W.2d 579, 585 (Iowa). That case involved the common-law inference that a person possessing recently stolen goods stole the goods. As in the present case, the trial judge in that case omitted the objectionable language in Hansen: 'may be overcome or rebutted by evidence to the contrary.' After setting forth the inference, the instruction in the Thornburgh case read:

'The inference of theft may be rebutted.'

While this court stated it may be considered advisable to omit that sentence, the court held the inclusion of the sentence was not subject to the challenge of casting the burden on the defendant; hence the court did not sustain the assigned error. The court adverted to the absence of the language found objectionable in Hansen regarding evidence to rebut the inference: 'The instruction is not subject to the attack directed to the paragraph quoted earlier from the instruction considered in Hansen and those cases following that decision since it does not at any point convert the inference arising from the unexplained possession of recently stolen property into a conclusive presumption of guilt If evidence is not produced to rebut it.' 220 N.W.2d at 586 (italics added). Exactly the same may be said about the sentence in the present case, except that this sentence is stronger for defendant since it expressly adds that the inference is Not conclusive. It is true that the Thornburgh instruction uses the word 'rebutted' while the present one uses 'rebuttable,' but this variation does not seem significant.

We hold that defendant's exception to Instruction 11 is not well taken. The omission of the phrase 'but it is rebuttable' in future instructions would possibly avoid appeals of this type. See II Iowa Uniform Jury Instructions, No. 520.8 (1970).

II. Defendant next contends that Instruction 11 conflicts with the evidence in that the State's expert expressed the result of the test in 'milligram percent' rather than 'hundredths of a percent' and also indicated on cross-examination that in his opinion a person would not be intoxicated at ten one-hundredths of a percent, the percent stated in § 321.281 of the Code.

The testimony shows, however, that the expert equated milligram percent to hundredths of a percent. At one point he testified:

The breath sample was found to contain alcohol corresponding to blood alcohol level of 130 milligram percent. Thirteen hundredths of one percent.

We do not find merit in the first part of defendant's objection.

The expert testified on cross-examination that at 50 to 60 milligram percent, alcohol has no effect; from 60 to 200 the effect becomes more and more visible--loss of motor coordination, loss of inhibitions, slurred speech, clammy skin; above 200 the person would be drunk or intoxicated, completely under the...