State v. Shelton, 53367

• Citation: 176 N.W.2d 159
• Decision Date: 07 April 1970
• Docket Number: No. 53367,53367
• Parties: STATE of Iowa, Appellee, v. Marvin Lee SHELTON, Appellant.
• Court: Iowa Supreme Court

Page 159

176 N.W.2d 159

STATE of Iowa, Appellee, v. Marvin Lee SHELTON, Appellant.

No. 53367.

Supreme Court of Iowa.

April 7, 1970.

Stanford L. Trumbower, Des Moines, for appellant.

Richard F. Turner, Atty. Gen., William H. Garretson, Asst. Atty. Gen., Charles Vanderbur, County Atty., and William E. Gibbons, Asst. County Atty., for appellee.

STUART, Justice.

An Ames Municipal Court jury convicted defendant of operating a motor vehicle while intoxicated in violation of section 321.281, 1966 Code of Iowa. He has appealed from the judgment entered on the verdict alleging four errors based on the claim that the foundation testimony for the admission of the blood test was not sufficient to make the test admissible.

I. The withdrawal of blood from the body of a person accused of a crime for use as evidence in proving the crime is a serious matter, although such procedure has been held constitutional. Schmerber v. State of California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; State v. Johnson (1966), 259 Iowa 599, 602, 145 N.W.2d 8, 10. The legislature in recognition of this fact imposed certain requirements which must be met before the results of the test can be used as evidence. Section 321B.4.

We enumerated the requirements in Lessenhop v. Norton (1967), Iowa, 153 N.W.2d 107, 111, 112. Before any result of a blood test analysis can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission by showing '(1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments used were sterile, (5) that the blood taken was properly preserved or kept, (6) and labeled, and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons whose supervision the tests were conducted be established.'

Defendant claims the foundation here was deficient because there was no evidence: (a) the blood was taken from the particular identified body of defendant, (b) the nurse had been designated to take blood by a licensed physician, or (c) the syringe was sterile, factory wrapped or 'anything of this nature'.

We will examine these charges in the light of the pertinent evidence.

Defendant was arrested for O.M.V.I. in Ames by Officer Grosvenor. He was advised of his constitutional rights and was taken to the police station. After defendant consented to a blood test, Grosvenor put a small sealed bottle used for blood samples in his pocket and took defendant to the hospital, where Mrs. Judge, a registered nurse, withdrew blood from his arm in Grosvenor's presence. He took the sample to the home of Mr. Baughman, director of the bioassay division of Pharmatox Laboratories at about 3:45 a.m. Mr. Baughman took the sample to the laboratory the same morning and performed the blood test which registered 182 milligrams of alcohol per hundred millileters of blood.

Mrs. Judge could not identify defendant but testified without objection that the hospital records disclosed she withdrew a blood sample from Marvin Lee Shelton. There was only one Marvin Lee Shelton registered at the hospital that day. Although she had no recollection of this particular incident, she testified she had withdrawn blood samples for 19 years at the hospital and always withdrew blood in the same manner. She described the procedure as follows:

'We washed the arm with aquous solution of zephrine and used a disposable syringe to withdraw the blood and put it into a bottle the officer has. It is a sealed bottle. The seal is broken and we put the blood in it and he reseals it with a wax. This is done in my presence. There is no alcohol used in this procedure.'

(a) There was abundant evidence the blood sample was taken from defendant. Officer Grosvenor supplied the bottle, saw the blood taken from defendant and put into the bottle. He delivered the sample to the person who performed the test. Mrs. Judge could not identify defendant but testified the hospital records showed she withdrew blood from only one Marvin Lee Shelton on the day in question. There is no merit to defendant's first contention.

(b) There was no direct evidence Mrs. Judge had been designated to take blood by a licensed physician. Such inference would have to be drawn from the evidence that she had taken many blood samples during 19 years as a nurse. We would also have to assume she could not have taken any blood samples without having been designated to do so by a licensed physician.

(c) The syringe used to withdraw defendant's blood was described as a 'disposable syringe'. In order to hold the foundation sufficient in this respect we would have to assume it was factory wrapped or sterile or both.

We do not believe we can make the necessary assumptions. In State v. Charlson (1967), Iowa, 154 N.W.2d 829, 835, in holding literal compliance with certain technical requirements of section 321B.4 was not necessary in order to constitute substantial compliance with the legislative intent, we said:

'It is obvious the purpose of the quoted provision, together with the further language of 321B.4, 'kept under strictly sanitary and sterile conditions', is to assure, so far...