*1 421 15,661. No. Manager Safety Excise
Kirschwing, City County et Farrar. of Denver al. v. (166 154) [2d] P. January 28, 1946.
Decided *2 Mr. Mr. Carl C. Malcolm Lindsey, Hearnsberger, Mr. Frank L. Hays, for in error. plaintiffs
Mr. O. Otto Moore, for defendant in error. En Banc.
Mr. Justice Jackson delivered opinion court. in error, Farrar-, as a
Defendant employed police officer of Denver for eighteen years, approximately was dismissed Robert J. by Kirschwing, manager safety and excise of the Denver, for City Cоunty having been under the influence of intoxicating liquor while on duty March 1944. On his re- for petition view and from the appeal findings manager safety, the Civil Service Commission city county sustained dismissal. Farrar insti- thereupon tuted this action in court, the Denver district and after court, trial an order was entered reinstating Farrar on the “that there ground was a failure * * * to sustain thе made charges against plain- tiff.” The here on manager safety comes writ of error, asking and also that the case be supersedeas on the determined We have supersedeas application. elected to of it. so dispose Farrar,
The evidence shows that first patrolman class Denver police department, was found police midnight other officers on or about March 2, duty, 1944, in uniform, full at a on time when he was at corner of 17th streets, Denver, and Larimer lying unconscious condition. He downward; face large cheek; had a bruise on one there skin abra- was a pupils eyes widely on chin, sion his of his were superior Captain dilated. His officer, Raedel, was sum- picked up moned, and, under his direction, Farrar was police and taken to the station and later to Denver Hospital where- General a blood alcohol was made, pursuant Captain also to Raedel’s direction. The result mg. per of this test disclosed 3.9 “Alcohol of Blood,” cc according which, evidence, is considered suffi- high cient in mоst humans to induce a state intoxi- police cation. officers who had either discovered participated in an Farrar unconscious condition or had taking police subsequently him the station, hospital, hearing manager testified before the *3 safety they did that not believe he had an “alcoholic Captain testimony breath.” Raedеl’s was, “I found an foreign liquor.” substance, odor of some wasn’t Dot emergency Malone, nurse, head room, Denver General Hospital, testified, “There an I odor, but couldn’t Crum, tell what it was.” Dr. who withdrew blood any test, he alcohol testified that did notice breath, odor alcohol on Farrar’s but believed he was drunk. midnight
Farrar’s defense was that at about the that suffеring 2, 1944, ushered in March he was from an type; of the mal seizure that had be- just going duty once come unconscious before after off morning of December 1943. 16, There was evidence had been show that he ordered not to drive a car, police always that other officers and took the driver’s they police out him seat started with in when cars. рolice The trial court’s reversal commissioner and the Civil Denver Service Commission was founded respective its their on belief that actions were based on 424 that test; that proof alcohol blood were faults which to the it was
inaccurate; open 141 298, 111 Colo. People, v. in Cobianchi held to exist relied on therefore 688. It P. (2d) either at brеath, “no liquor” there was streets or Larimer and at 17th up he was picked time taken have been the blood was at the and held Hospital, Denver General him at the awas “that there discretion his abused manager offered.” in the proof failure and the commission trial specify Kirschwing . In holding Kirschwing court erred: (a) acted in dis- arbitrarily capriciously commission Farrar; that the holding charges against charging (b) the evidence substantially supported by Farrar were not failure of to sustain the charges and there was a the restoration of Farrar; ordering against (c) plain- first in the classi- grade of patrolman status tiff of Denver. City County fied service test has in two upheld blood been Cram recent cases. State 283 v. (Ore.), (2d) P. (June 19, a criminal case in which the de 1945), was unsuccessfully fendant a constitutional urged Simultaneously, use of the blood alcohol test. Woodhouse, Hanlon v. 998, 113 Colo. 160 P. (2d) had us a civil action for as a result damages we intro collision which evidence was automobile defendant, of a test for alcohol blood duced and, while still un taken tо hospital who been blood was withdrawn from his veins “to conscious, of a alcohol” at the request public for blood tested *4 the had summoned to the scene of who been officer in and the labora charge Both the physician accident. that showed suffi analysis testified technician tory cause a state of drunkenness alcohol cient blood made at the trial to the Objection average person. overruled the trial the evidence was admission There ruling. objec- sustained and we judge, ground confidential relation on the tion was physician’ patient been violated. between and appear in- 209, In 127 A. 159 L. R. L. R. and A. weight teresting “admissibility and annotations on or for intoxication evidenсe based on scientific test presence system.” alcohol objection
In the instant case the to the blood subject ground test is made on that it was pregnancy same as the which People, supra. case us in Cobianchi In that v. knowledge doctor could not state of his own In urine the deceased. used the test that of testimony doctor instаnt case of the we have actually who withdrew from Farrar’s veins that was used in the In the Cobianchi test some test. injected of a deceased’s urine was the veins into charge that, rabbit, female and the doctor in testified twenty-four inspection from the of the ovaries rabbit’s positive; but on later, hours cross-examination, the result of the test was aрpeared it that none of the wit- knowledge positively her nesses could state from his or (2), (1) virgin, the rabbit for the test was used proximity not to a male rab- so, if bit, that it had been age (3) required limits, that it was within weight. (4) proper four It was admitted that all complete. Fur- to exist to make the test conditions had although brought the rabbit thermore, that, it was out requirements, the test еven then used all four fulfilled gonadial pregnancy because a was not absolute pregnancy the same reaction as cause tumor would deceased did have such there was no foregoing, physi- all In addition to a tumor. in after the abortion had been called cian, who deceased, testified that found had curetted expect to find placental he would after which tissue accordingly preg- held that the fact of We abortion. prerequisite of mur- nancy, to a conviction awas not been established. abortion, had der *5 426
In case, the instant in addition to of the blood, the doctor who withdrew the there is thé testi- of his assistant who held the tube mony test into which Farrar’s blood was and who then made poured a record the on form which she in the printed filled hospital’s date, time of withdrawal, name, and the who requested examination, the doctor’s name blood, who drew the laboratory technician’s name. She then marked containing test tube Farrar’s blood and in an put it box which was ice and to which she padlocked laborаtory technician at the had the hospital keys. only The laboratory technician she testified that made an examination of Farrar’s blood the result of this test showed the presence “3.9 cc of mg. per blood.” counsel, although cross-examining laboratory technician as to her qualifications a wit- as ness, did not either cross-examine to the respect nature of the blood alcohol test which she conducted or as to she how identified the fact it was Farrar’s blood which she analyzed. objection No made to introduction the testimony involving the blood alcohol either test, in the hearing before the commis- sioner or before Civil Service Commission. It is apparent the record in the part Cobianchi case which laid the basis for reversal this court was cross-examination brought out the lack of accuracy test as pregnancy to the applied par- ticular circumstances that case. Objection was there made to the admission testimony relating test. In the pregnancy instant case no objection made to the introduction of the testimony relating either alcohol test proceedings or police commissioner before the Denver Civil Service It Commission. also should be noted that Cobianchi case was a criminal case in which be made guilt beyond doubt; reasonable instant case is civil whereas There proceeding. been made to the as having introduction and no the results of blood evidence attempt accuracy, its to attack cross-examination *6 considering question justified oh this feel do not we review. — forbidding this rule that to be sure In order — appearing in the record point not of a consideration injustice, the na have studied we an would work they set forth have been as alcohol tests ture of blood pregnancy in the test Unlike the and other cases. this biological might described as a case, Cobianchi which necessity involving and accurate for careful laboratory, controls outside of purely one with chemical test in the instant case is a directly supervision of the all of the controls under the having participated three witnesses who testified as to by way bring in the out test. counsel failed to Farrar’s inaccuracy any possible of of cross-examination chances might testing the that exist in the various methods presence defense counsel alcohol in the blood that respect pains the Cobianchi casе disclose in took such pregnancy test. any to find case where have been unable We has been excluded intoxication determine blood test to leading proof. In the value as its unreliable because of January Iowa Law Re- 1939 issue article in the page Mason Ladd view, 214, Professors 24, volume up that the statements B. Gibson made Robert reported. writing had been such case time of condition is defense the. morning March a.m. on the 12:15 at found commonly epileptic seizure de- due 1944, distinguished mal, from less as aas scribed petite mal. Farrar’s called a sometimes seizure severe disre- if the blood alcohol test be assert counsel every consistent garded other bit of evidence is theory not under the influence that Farrar was with testimony Crum, of Dr. somewhat The alcohol. pupils He stated that the assertion. counsel’s weakens of Farrar’s eyes widely at examination were dilated, that his He and his were pulse breathing rapid. then testified on redirect examination that such a con- dition of the eyes and more in- pulse was indiсative of toxication from alcohol than of an seizure. is made Farrar’s counsel on greatest emphasis fact there was no indicating Farrar, at the time he was unconscious or at picked up the time of the examination for blood alcohol had an odor alcohol on his breath. hospital, Counsel makes the statement: “We observe at this challenging that no point man, alcohol, ever in the black history yet has arrived of drunken- past ‘staggering’ stage ness without the odor of radiating alcohol.” is offered in
No evidence of this contention support *7 and there where, be obvious conditions appear with of intoxication high degree existing, the odor of al- cohol on the breath is not such as : present, (1) wherе it has been the disguised by deodorants; use of separate (2) where the person has imbibing a condi- developed tion of acidosis, in which case the breath takes on the peculiar odor acidosis; person suffering (3) where the alcoholic drink has in it a flavor that tends to blot out or modify alcoholic breath. typical See: W. D. McNally, Tоxicology, 1937, Industrial Medicine, 657; Quantitative p. Drunkenness, A of Acute Al- Study coholic Intoxication, E. Bogen (1927) 89, 1508; J.A.M.A. Alcohol and Man by Haven Emerson, The MacMillan Company, York, New 138. p. the testimony
Nor does that Farrar’s breath had a odor, but not alcoholic, distinctive support diagnosis as seems to have been epilepsy, tacitly assumed by his counsel. We hаve studied carefully a number of works four epilepsy, including recent studies, i. e.: Science Seizures, by Will G. Lennox (1941); Con- vulsive Seizures and How to Deal Them, With by Tracy Putman (1943); Epilepsy Cerebral Localization, by Penfield (1941); The "Falling Sickness, by Temken (1945). any refer- Nowhere can find indication or we ence of the breath to the fact that a distinctive odor precedes, accompanies, a seizure of either or follows petite type. mal or mal concerning breath, of Farrar’s odor negative appear It in its to be therefore, would nature. conclusively prove intoxicated. that he was not does not support theory that he At the same time it does seizure. suffered from an relating character of evidence The inconclusive develop- breath has led to the on the odor of alcohol — objective probably tests the commonest ment of more present is the blood alcohol test. which at by been made of it noted, use has officers As has been police depart- as subject Denver state, of this as well legislation Its use is the some states. ment. prior every Sweden, II, And in at least War World police department having to member of the do with regulation equipped seems to have been traffic with obtaining saving, apparatus purpose for subsequent testing, a certain amount of the blood of any driver of a car in an involved accident. Iowa State (id.). Bar Journal error,
Counsel for defendant in Farrar, makes a cross-specification error which, of our dis because position requires of the case, our consideration. offered in evidence to the trial court cor-
Counsel secretary respondence between of the Denver Civil and Dr. Herman A. Heise, Service Commission of Mil- waukee, Wisconsin, former wrote lat- *8 the status of instant case ter about while it was pending the commission, still asked for the Doctor Heise, latter’s comments. course of his replying secretary letter to that of of the Civil Serv- Commission, ice remarked that “it is obvious trumped up.” stenographer typed is The defense the who outgoing charge letter and who was in of the files by of the commission and who was the witness called testified the correspondence, to identify Farrar’s counsel had been the correspondence far as she knew that so his commission on by secretary entered into mem- did not know whether motion, and she own it. the commission seen bers of evidence was this in. correspondence The admission on the ground for the commission counsel by to objected evidence, was not proper it was court this of the trial was ruling We believe sustained. correct. case,.we the final of this are of
As to disposal the alcohol testimony concerning opinion blood, made of Farrar’s of the evidence part bоth Excise and the Safety Manager Denver Civil could con Service Commission properly to was sufficient evidence competent there sider; and that did respective findings; they their support in so finding. their discretion not abuse is accordingly reversed. judgment The Hilliard Justice dissents. Mr. dissenting. Hilliard
Mr. Justice in officer the veteran police The consequences continue, serious, that, so are volved, immediate and him con against the evidence obvious weakness — I the trial court by in his favor sidered— resolved our direc think the judgment imposed severe v. State cites court injustice. rare constitutes tion Hanlon v. Wood 283, and (2d) 160 P. Cram (Ore.), (2d) 998, 160 P. house, support 113 Colo. tests are evidence competent bloоd alcohol doctrine that submit, I That, drunkenness. on the question considered, is not controlling question. inquiry this found, and the based finding court trial What was that evidence, many years on undisputed suffered affliction of the officer had *9 duty type, physical collapse mal Ms while on might well be a attributed to sudden attack of dread disease. The tests blood alcohol was, that, from taken was integrity identity officer until it examined, sample verity, did not attend. lack Of of care regard clearly appears, operated which, think, as I incompetent. to make it
Bearing evident inherent weakness that the mind testimony, noting the liquor’ the “alcoholic test” state- opinion ‘no ment in the that “there was court up picked time he was breath, either at the * * * or at the time the blood was to have been Hospital,” taken I from him the Denver at General resolving think the court was warranted in .trial my study doubt in favor of the officer. con- Indeed, as charge, vinces, intoxication, altogether. By running failed our determination, coun- judgment longer police ter to the below, officer, young, satisfactory only of extended is to service, present separation suffer from a' livelihood earned in prosaic police duty, but retirement benefits that would physical through years make for his comfort nonearning ability, hand, almost at him. will lost to judge be, than the trial will I, no less as
While proceeds prevent am unable I mandate, on our what upon to be an undeserved visitation an humble conceive unsung public may, properly still, I servant, as I approval my judgment of the sound and voice humane jurist. learned trial