State v. Proulx

Decision Date20 April 1977
Docket NumberNo. 56835,56835
Citation252 N.W.2d 426
PartiesSTATE of Iowa, Appellee, v. Andrew Joseph PROULX, Appellant.
CourtIowa Supreme Court

Paul E. Pfeffer, Clinton, for appellant.

Richard C. Turner, Atty. Gen., Ray Sullins, Asst. Atty. Gen., G. Wylie Pillers, County Atty., for appellee.

Heard before MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.

MASON, Justice.

Defendant, Andrew Joseph Proulx, was charged by county attorney's information with operation of a motor vehicle while intoxicated in violation of section 321.281, The Code, 1973. Trial to a jury resulted in the return of a guilty verdict on August 23, 1973. August 31 judgment and sentence was imposed pursuant to the jury's finding of guilt. Defendant's driving privileges were suspended for 60 days and he was fined $300 plus costs. Defendant's appeal followed.

The events leading to this prosecution commenced at approximately 11:00 p. m. on May 31, 1973, when defendant was arrested by Corporal Arthur Laufenberg of the Clinton Police Department for operation of a motor vehicle while intoxicated. Corporal Laufenberg transported defendant to the Clinton County/City Law Enforcement Center where defendant was requested to perform a number of tests indicative of a suspect's manual abilities and was subjected to a standard interrogation. In addition, defendant was told of his options with respect to the various chemical tests which would be performed to determine the alcoholic contents of his blood. Defendant was presented with a chemical test consent form and signed his name indicating he wished the breath test and Officer Laufenberg noted on the form defendant had refused the blood test. The testing procedures and most of defendant's activities in the Law Enforcement Center were video taped with his apparent consent.

June 1, 1973, a preliminary information was filed charging defendant with a violation of section 321.281. Defendant entered a plea of not guilty and requested a jury trial on June 8.

July 6 assistant county attorney Lauren Smith presented a county attorney's information charging defendant with the aforementioned crime to D. F. Halbach, associate district judge, for approval. Judge Halbach approved the information the same day but it was not filed with the clerk for some time. The exact date the information was filed with the clerk is impossible to determine in light of the fact no "filed" stamp appears thereon. However, there is evidence the information was filed with the clerk sometime between July 26 and August 1, 1973.

Defendant filed a motion to dismiss the charges against him on August 3 asserting he had been denied his right to a speedy indictment under section 795.1, The Code. He argued the 30-day limitation period of section 795.1 began to run when he waived preliminary hearing by pleading not guilty on June 8 and no information was filed within 30 days of that date. August 16, Judge Halbach overruled defendant's motion to dismiss and found that defendant was held to answer on June 8 and the information was filed with him on July 6.

Two days prior to the August 23 trial date, defendant filed a motion to suppress the breath test results on the ground there was no evidence defendant was first offered and refused a blood test. The motion was overruled immediately prior to trial.

At various points during the trial stage, defendant objected to testimony of the State's witnesses concerning the chemical testing procedures and results used and produced herein. These objections were primarily based upon competency to administer the tests, failure to follow statutory and departmentally authorized procedures and allegedly defective results. These objections were overruled and constituted the basis for defendant's motion to strike testimony and motion for directed verdict made at the conclusion of the State's evidence and at the close of all evidence which were likewise overruled.

In rebuttal, the State displayed the video tape of defendant's actions in the Law Enforcement Center on the night of his arrest. Defendant objected to the admission of the tape on the grounds no new evidence was offered by defendant, it was prejudicial, defendant had had no opportunity to view it, it was improper rebuttal and it was rendered incompetent for lack of foundation. The trial court admitted the tape over defendant's resistance thereto.

As noted, defendant was found guilty August 23. On August 30 defendant filed a motion requesting the trial court to set aside the verdict and enter a verdict of not guilty based upon the denial of his speedy indictment right and lack of evidence to support the jury's finding. In the alternative, defendant requested the verdict be set aside and he be granted a new trial asserting as grounds therefor his evidentiary objections previously mentioned. Defendant's motions were denied on the date of sentencing. Defendant's notice of appeal was filed October 22.

July 17, 1975, defendant moved this court to dismiss the charges against him on the ground the video tape introduced by the State as rebuttal evidence had been destroyed shortly after trial. Defendant argues destruction of the video tape deprives him of a complete record on appeal and constitutes "irreversible prejudice." By order dated July 28, 1975, this court ordered defendant's motion submitted with this appeal.

Defendant's contentions present the following issues for this court's review:

1. Did the trial court err in overruling defendant's motion to dismiss based upon his right to speedy indictment under section 795.1?

2. Did the trial court err in overruling defendant's motion to suppress the breath test results based upon an alleged violation of chapter 321B?

3. Did the trial court err in overruling defendant's objections to and motions to strike the testimony of the arresting officer and the State's chemist concerning the breath test results based upon allegedly defective test procedures?

4. Did the trial court err in permitting the State to show the video tape over defendant's improper rebuttal objection?

5. Under the facts and circumstances present herein is defendant entitled to a reversal and dismissal of the charges against him or reversal and new trial because of the prosecution's failure to preserve the video tape for appellate review?

I. Defendant's speedy indictment contention is without merit. The 30-day period referred to in section 795.1 does not begin to run until "a person is held to answer for a public offense." Defendant's argument that he was "held to answer" when he pleaded not guilty is refuted by many of this court's recent opinions. In State v. Montgomery, 232 N.W.2d 525, 526-527 (Iowa 1975), this court said:

" * * * In a number of cases we have held the term 'held to answer,' within the meaning of § 795.1, means 'held to answer by a magistrate after a preliminary examination or waiver of (the) same.' State v. Mays, 204 N.W.2d 862 (Iowa 1973); State v. Morningstar, 207 N.W.2d 772 (Iowa 1973); State v. Sowle, 218 N.W.2d 573, 574 (Iowa 1974); State v. Lee, 222 N.W.2d 471 (Iowa 1974); State v. Thomas, 222 N.W.2d 488 (Iowa 1974); State v. Lyles, 225 N.W.2d 124 (Iowa 1975); State v. Emery, 230 N.W.2d 521 (Iowa 1975). Under this definition defendant was never held to answer within the meaning of § 795.1."

No preliminary examination was ever held herein and defendant did not waive that procedure. Under the interpretation of section 795.1, The Code, as adopted by a majority of this court, defendant was never "held to answer" within the meaning of this section and the 30-day period established therein was inapplicable to the proceedings against defendant. Defendant's motion to dismiss based on contrary assertions was properly overruled.

II. Defendant contends the arresting officer did not comply with the provisions of section 321B.3, The Code, 1973, in procuring defendant's breath specimen and the trial court erroneously overruled his motion to suppress based upon the alleged foundational defects in the breath test evidence. Specifically, defendant maintains there is no evidence he was first offered and refused the option of a blood test. In addition, defendant argues the trial court erred in refusing to determine the foundational issues outside the presence of the jury.

The State and defendant rely upon this court's opinion in State v. Jensen, 216 N.W.2d 369, 372 (Iowa 1974), as support for their contentions concerning compliance with the procedures established in section 321B.3, The Code. In the cited case this court said:

"The procedure required under section 321B.3, The Code (implied consent law) has become carefully defined. The standards for the procedure are as follows: (1) There must be a written request by the officer to the arrested driver for permission to take a blood test. (2) If the request for a blood test is refused the officer must then make a written request for a breath or urine test. (3) There must be a showing the officer is properly qualified under the statute to administer the test. (4) There must be proof the test was given by the use of devices and methods approved by the commissioner of public safety as provided by section 321B.4, The Code. * * * (citing authorities)."

However, unlike Jensen, the chemical test consent form utilized herein is not incomplete and indicates defendant was offered and refused the blood test option. The appropriate box on the form is checked to indicate defendant's refusal of the blood test and the place for defendant's signature contains the word "refused," the proper entry to be made in that space as directed by the form in the event the accused refuses to sign. The next section of the form manifests defendant's consent to the breath test and his signature is affixed thereto in the appropriate place. Defendant's trial testimony does not contradict the accuracy of the form.

In light of the above, defendant's contention foundation was lacking for the admission of...

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9 cases
  • State v. Kile
    • United States
    • Iowa Supreme Court
    • December 23, 1981
    ...on the trial information-this did not render it inadmissible on rebuttal, since it contained elements of rebuttal. State v. Proulx, 252 N.W.2d 426, 432 (Iowa 1977). We find no abuse of discretion. State v. Bakker, 262 N.W.2d 538, 543 (Iowa VI. Defendant argues, finally, that the jurors were......
  • State v. Davis, 60059
    • United States
    • Iowa Supreme Court
    • November 23, 1977
    ...means held to answer by a magistrate after a preliminary examination or waiver of same under section 761.1 and 761.18. State v. Proulx, Iowa, 252 N.W.2d 426, 429; State v. Montgomery, Iowa, 232 N.W.2d 525, 526, 527; State v. Emery, Iowa, 230 N.W.2d 521, 523; State v. Hines, Iowa, 225 N.W.2d......
  • Gannon v. Board of Regents
    • United States
    • Iowa Supreme Court
    • February 4, 2005
    ...the "Iowa State University Foundation." Given the well known fact that ISU was known as Iowa State College in 1958, see State v. Proulx, 252 N.W.2d 426, 431 (Iowa 1977) (court may take judicial notice of "facts capable of accurate and ready determination by resort to sources of indisputable......
  • State v. Paulsen
    • United States
    • Iowa Supreme Court
    • April 19, 1978
    ...information or waiver of such and, therefore, defendant was never held to answer within the meaning of § 795.1. In State v. Proulx, 252 N.W.2d 426, 429-430 (Iowa 1977), we rejected a defendant's argument he was held to answer within the meaning of § 795.1 when he entered a not guilty plea s......
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