State v. Schwade

• Decision Date: 20 November 1964
• Docket Number: No. 35765,35765
• Citation: 131 N.W.2d 421,177 Neb. 844
• Parties: STATE of Nebraska, Appellee, v. John M. SCHWADE, Appellant.
• Court: Nebraska Supreme Court

Page 421

131 N.W.2d 421

177 Neb. 844

STATE of Nebraska, Appellee, v. John M. SCHWADE, Appellant.

No. 35765.

Supreme Court of Nebraska.

Nov. 20, 1964.

Syllabus by the Court

1. Generally, providing the statutory nequirements as to foundation are met, evidence as to the obtaining of a specimen of body fluid, including urine, at or near the time in question, is admissible as relevant and competent evidence on the issue of intoxication.

2. For a question of constitutionality to be considered in this court, it must be properly raised in the trial court. If it is not raised in the trial court, it may not be considered by this court.

3. An essential factual determination may not be made by the district court or this court unless based upon competent evidence in the record.

Barney, Carter & Buchholz, Lincoln, for appellant.

Ralph D. Nelson, City Atty., Henry L. Holst, Deputy City Atty., Fred J. Swihart, Asst. City Atty., Lincoln, for appellee.

Heard before WHITE, C. J., MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ., and ROBERT L. SMITH, District Judge.

WHITE, Chief Justice.

Defendant appeals from a conviction and sentence under a city ordinance for driving a motor vehicle while under the influence of alcoholic liquor. At 1:30 a. m. on June 4, 1963, two Lincoln police officers, after observing defendant's erratic driving, took him to the police station, administered tests, and collected a voluntarily furnished specimen of urine, which tested 0.21 percentage alcohol (by weight).

The district court received in evidence the urine specimen and the testimony of the state licensed expert chemist that the specimen tested 0.21 percentage of alcohol by weight. The court instructed the jury on the rebuttable presumption of intoxication thus arising under section 39-727.01, R.S.Supp., 1961.

We summarize the contentions of the defendant as presented by those of his assignments of error and propositions of law that are discussed in his brief on appeal. His first and main contention is that the presumption statute, section 39-727.01, R.S.Supp., 1961, is unconstitutional. Generally, he bases this contention upon the claim that, as a matter of recognized scientific fact, there is no rational connection between the percentage of alcohol in the urine and the state of intoxication of a defendant at the time the urine specimen was taken. Second, he contends that the presumption provisions of section 39-727.01, R.S.Supp., 1963, are ex post facto, as far as their application to this case is concerned, and a violation of the constitutional provision prohibiting the enactment of ex post facto legislation. Section 39-727.01, R.S.Supp., 1961, was amended by Laws 1963, c. 238, § 1, p. 714, to make its provisions applicable to trials and prosecutions under city ordinances (section 39-727.01, R.S.Supp., 1963). Since the effective date of the new act was June 10, 1963, and the offense occurred on June 4, 1963, he says that the application of the new statute to this trial is ex post facto because the difficulty of conviction is lessened as to the measure or character of the evidence required. His third contention is that the evidence is insufficient to support a conviction.

As to the first contention, in Vore v. State, 158 Neb. 222, 63 N.W.2d 141, this court has held that there is a rational connection between urine specimen alcohol concentration and intoxication at the time the specimen was taken. The purport of our holding with reference to the defendant's contention is apparent from the following quotation: 'The historical background of section 39-727.01, R.R.S.1943, which has been adopted in substance by many states, is set forth in Toms v. State, Okl.Cr. , 239 P.2d 812. It is therein pointed out that much alarm has been expressed by the legal profession in regard to statutes fixing a formula for determining intoxication by testing body fluids when there is such a degree of variability in humans. It is there stated, accompanied by the citation of ample medical and legal authority, that impairment sufficient to adversely influence driving ability is demonstrated quite clearly in the average individual at alcoholic concentrations of 0.09 percent to 0.11 percent in the blood. The court then states that the establishment of 0.15 percent as the presumption limit allows sufficient tolerance for individual variation. Consequently the fixing of 0.05 percent and below as creating a presumption of nonintoxication, and the fixing of 0.15 percent and above as creating a presumption of intoxication, affords full protection against individual variation to those submitting to the test.' (Emphasis supplied.) The Toms case, 95 Okl.Cr. 60, 239 P.2d 812, contains an exhaustive analysis of the relevancy of urine alcohol concentration to blood alcohol concentration and establishes that where there is 0.15 percent or more alcohol in the blood, or equivalent amounts in other body fluids, that it was fufficient as presumptive evidence of intoxication. It is said therein: "So by obtaining and analyzing samples of the urine or breath and measuring the amount of alcohol therein, an accurate and reliable estimate of the concentration of alcohol in the circulating blood can be obtained by chemical and mathematical calculations."

Defendant does not question that the foundational statutory requirements for the admission of this testimony have been met. In effect, we are asked to reexamine this determination of the competency and relevancy of this type of testimony in the light of the several medical and scientific authorities supplied us in the brief of the defendant. Defendant called no expert witness. None of the medical or scientific authorities supplied us in the brief were offered or received in evidence at the trial. On this basis, we are asked to determine, as a matter of law, that the scientific fact is that there is insufficient correlation between urine alcohol secured under the statutory test conditions and the degrees of intoxication of a defendant. We are asked to hold that the presumption statute is unconstitutional therefore, because it is not based upon any rational connection that would justify its imposition.

There are two reasons why the defendant's contentions as to constitutionality must fail. First, the record does not reveal that he raised the question of constitutionality in either aspect now presented to this court at any time in the trial court. As early as Pill v. State, 43 Neb. 23, 61 N.W. 96, a criminal case, this court ...