State v. Pitz, No. 8-102/06-0795 (Iowa App. 5/14/2008), 8-102/06-0795
| Decision Date | 14 May 2008 |
| Docket Number | No. 8-102/06-0795,8-102/06-0795 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. JEREMY THOMAS PITZ, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard, II (motion to suppress) and Mitchell E. Turner (trial), Judges.
Defendant appeals from his conviction of operating while intoxicated. AFFIRMED.
Richard A. Bartolomei, Bartolomei & Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Janet M. Lyness, County Attorney, and Iris Frost, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Mahan, JJ.
Defendant appeals his conviction for operating while intoxicated, second offense. He contends (1) the district court erred in allowing into evidence results of a breath test taken with a DataMaster cdm testing device, (2) Iowa Code section 321J.15 (2003), as construed by State v. Stohr, 730 N.W.2d 674 (Iowa 2007), is unconstitutional, (3) the court erred in allowing a DCI criminalist to estimate the number of drinks the defendant had consumed based on the breath test results, and to give opinion testimony as to his impairment, and (4) the court erred by instructing the jury twice that it did not have to unanimously agree on a theory or factual basis when reaching a verdict. We affirm.
On June 15, 2004, at approximately 1:44 a.m., officer Darin Zacharias of the Iowa City Police Department was on routine patrol and noticed a car speed up as it approached a yellow light. The light turned red but the vehicle continued and made a left turn. Zacharias stopped the vehicle and identified the defendant, Jeremy Pitz, as the driver. Zacharias noticed Pitz's eyes were watery and bloodshot. Pitz admitted that he had just had a beer with a friend. Results of field sobriety tests and two preliminary breath tests indicated Pitz was intoxicated. The officer discovered a half-empty beer can in the console of the car and five empty beer cans in the back seat. Pitz was arrested for operating while intoxicated and taken to the police department for implied consent procedures. Pitz supplied a breath sample to be analyzed by the DataMaster cdm testing device, which indicated a blood alcohol level of 0.109.
Pitz was prosecuted for operating while intoxicated as a second offender in violation of Iowa Code section 321J.2 (2003 Supp.). Pitz filed a motion to suppress the results from the DataMaster cdm device and any testimonial evidence relating to the breath test. Pitz alleged the results and testimony drawn from the results were inadmissible because statutory foundational requirements had not been established and because various flaws in the certification and calibration of Datamaster machines made the results unreliable. After a hearing, the motion was denied but Pitz renewed objections on these grounds throughout trial. Pitz also objected to a DCI criminalist's testimony estimating from Pitz's size and breath test result, the number of drinks Pitz consumed and his possible level of impairment. Before the case was submitted to the jury, Pitz objected to certain language in two of the jury instructions, claiming it unduly influenced the jury by detracting from the State's burden of proof. The court overruled the objection and the jury returned a guilty verdict. Pitz appeals these adverse rulings. He also claims, for the first time, that Iowa Code section 321J.15, which provides foundational requirements for admission of breath tests, is unconstitutional.
Our review of a court's interpretation of statutory and administrative requirements that govern the admissibility of evidence is for correction of errors at law. State v. Stohr, 730 N.W.2d 674, 675-76 (). Issues concerning the admission of expert testimony are reviewed for abuse of discretion. State v. Rains, 574 N.W.2d 904, 916 (Iowa 1998). "Our standard of review on issues of jury instructions is for errors at law." State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2001).
Pitz initially argues that the court erred in admitting the breath test results taken with the DataMaster device. He claims the State failed to lay adequate foundation to permit the admission of the breath test results. He contends the State must prove the DataMaster provides reliable results prior to admission. Pitz claims the DataMaster results are not reliable and should not be admitted due to various flaws including:
(1) the DCI criminalist's admission that he did not know if the DataMaster reading accurately reflected Pitz's breath alcohol level.
(2) The DCI criminalist's admission that only one breath sample is used but multiple samples may show a variance of up to .05 in breath alcohol level.
(3) The DataMaster is not adjusted to actual human breath temperature which can also affect the result.
(4) The DCI does not calculate a margin of error for each individual machine when calibrating and certifying the machine.
(5) The DCI does not use statistical analysis in determining the margin of error of ± 5%.
(6) The testing and calibration procedures do not account for variations caused by temperature, air pressure, radio interference, or by the presence of acetones and ketones which may skew the results.
(7) In the calibration process, the DCI programs the machine to read a standardized solution sample at a .100 level without first having the machine test and analyze the actual level of the sample.
(8) Failure to assure the DataMaster machines are connected to a dedicated outlet and the breath hose is free of dust and other non-alcohol hydrocarbons may also skew results.
The State contends the DataMaster calibration and testing methods are reliable, and in any case, any potential flaws Pitz identifies impact the weight rather than the admissibility of the breath test result.
Iowa Code section 321J.15 governs the admissibility of breath test results. It allows admission of "evidence of the alcohol concentration . . . at the time of the act alleged as shown by a chemical analysis of the person's . . . breath." Iowa Code § 321J.15. The statute sets forth what foundation is needed prior to admission of the test results.
If it is established at trial that an analysis of a breath specimen was performed by a certified operator using a device intended to determine alcohol concentration and methods approved by the commissioner of public safety, no further foundation is necessary for introduction of the evidence.
Id. The Supreme Court has previously interpreted the foundational requirements demanded by the statute. Stohr, 730 N.W.2d at 676; State v. Bechtel, 434 N.W.2d 892, 894 (Iowa Ct. App. 1988).
Under section 321J.15, the State must establish three elements: (1) the test was performed on a device intended to determine alcohol concentration, (2) the test was performed by an operator certified to use the device, and (3) the methods used to perform the test were approved by the Commissioner of Public Safety.
Stohr, 730 N.W.2d at 676. The first element is satisfied because the DataMaster cdm is a device intended to determine alcohol concentration and is approved by the Commissioner of Public Safety to be employed in determining alcohol concentration for evidentiary purposes. Iowa Admin. Code. R. 661-157.2(3). The second element was met when the State provided adequate proof that officer Zacharias performed the test and is certified to operate the machine. At trial Zacharias testified that he was certified. Also, the State submitted a report bearing Zacharias's signature, confirming that he was certified and had read updated training materials for operating the Datamaster cdm. Last, the State also established that the testing procedures approved by the Commissioner of Public Safety were followed by Zacharias. By supplying recent certifications of the instrument, the State proved the actual machine used had been recently certified by the DCI and was in proper working order under the administrative rules. The State also provided the operational checklist that officer Zacharias used and initialed while testing Pitz.
Pitz contends more foundation proving the reliability of the machine is required. The Supreme Court has held otherwise. See Stohr, 730 N.W.2d at 676 (). The flaws Pitz identifies do not affect the admissibility of the test results but can be used to convince the fact finder that the results may not be accurate. "If a defendant . . . chooses to attack the results of a breath test, the jury may consider his argument in assessing the weight to give the test results." Id. Since the statutory foundational requirements were met, the district court correctly admitted the breath test results.
Pitz alternatively contends Iowa Code section 321J.15, as recently construed in State v. Stohr, 730 N.W.2d 674 (Iowa 2007), is unconstitutional. He argues that the statutory process for admitting scientific evidence in operating while intoxicated cases violates Pitz's due process rights and separation of power principles. The State contends that Pitz has not preserved error on this issue while Pitz claims he could not have raised the issue prior to the release of the Stohr decision.
"Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal." State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). "A party challenging a statute on constitutional grounds must do so at the earliest available time in the progress of the case." Id. In Stohr, the Supreme Court held that Iowa Code section 321J.15...
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